issue-1994-01-07•Federal Register proposed rules — 1994-01-07
Federal Register proposed rules — 1994-01-07
issue-1994-01-07Federal Register proposed rules — 1994-01-07Proposed Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 94-520 Endangered and Threatened Wildlife and Plants; Extension of Comment Period and Notice of Rescheduling of Public Hearing on Proposed Endangered Status and Designation of Critical Habitat for the Alabama Sturgeon
[Federal Register Volume 59, Number 5 (Friday, January 7, 1994)]
[Proposed Rules]
[Pages 997-998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-520]
[[Page Unknown]]
[Federal Register: January 7, 1994]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AB73
Endangered and Threatened Wildlife and Plants; Extension of
Comment Period and Notice of Rescheduling of Public Hearing on Proposed
Endangered Status and Designation of Critical Habitat for the Alabama
Sturgeon
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Extension of comment period and notice of rescheduling of
public hearing.
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SUMMARY: The Fish and Wildlife Service (Service) gives notice that the
second public hearing scheduled for January 13, 1994 (59 FR 288), on
the proposed rule to determine endangered status and designate critical
habitat for the Alabama sturgeon, Scaphirhynchus suttkusi, has been
canceled and rescheduled for January 31, 1994. The comment period is
extended until February 15 to accommodate the public hearing.
DATES: The public hearing that was scheduled to be held from 6 p.m. to
10 p.m. on January 13, 1994, in Montgomery, Alabama, has been canceled.
The hearing has been rescheduled and now will be held on January 31,
1994, in Montgomery, Alabama. The public comment period is further
extended through February 15, 1994.
ADDRESSES: The rescheduled public hearing will be held at South Hall #
1, Montgomery Civic Center, 300 Bibb Street, Montgomery, Alabama.
Written comments and materials should be sent to the Field Supervisor,
U.S. Fish and Wildlife Service, 6578 Dogwood View Parkway, Suite A,
Jackson, Mississippi 39213, or may be submitted at the public hearing.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.
FOR FURTHER INFORMATION CONTACT: James H. Stewart, at the above address
(601/965-4900).
SUPPLEMENTARY INFORMATION: The hearing announced in the Federal
Register of January 4, 1994 (59 FR 288), is being canceled and
rescheduled in order to provide more ample notice of the hearing to the
public. The hearing is now scheduled to be held on January 31, 1994.
The Service proposed to determine the Alabama sturgeon,
Scaphirhynchus suttkusi, to be an endangered species and to designate
its critical habitat on June 15, 1993 (58 FR 33148). The Alabama
sturgeon, a small sturgeon with a maximum length of about 30 inches, is
endemic to the Mobile River system, Alabama and Mississippi. Its
current range is restricted to the lower Alabama River and the Cahaba
River in Alabama. Both of these areas and the free flowing portion of
the lower Tombigbee River are proposed as critical habitat. Factors in
the strugeon's decline include dams, and possible adverse effects from
altered water flows, channel maintenance and gravel dredging.
A public hearing on the proposed rule was announced in the Federal
Register of September 13, 1993 (58 FR 47851) and was held on October 4,
1993 near Mobile, Alabama. The capacity of the facility selected for
the public hearing was not sufficient for all the individuals that
wished to attend. A second hearing was then announced in the Federal
Register on October 25, 1993 (58 FR 55036). The second public hearing
was originally scheduled for November 15, 1993, in Montgomery, Alabama,
to allow additional oral statements to be presented and to receive
comment on a scientific report prepared by experts on the taxonomy and
on the likelihood of existence of the Alabama sturgeon.
The November 15 hearing was canceled in response to a preliminary
injunction issued on November 9, 1993, that restrained the Service and
others from: (1) Disseminating the scientific report to the public;
and, (2) utilizing or relying upon the scientific report or any product
of the experts' deliberations in connection with the decision-making
process on the proposal to list the Alabama sturgeon and to designate
its critical habitat. Because the notice announcing the November 15
hearing specifically addressed the availability of the scientific
report and the Service's intent to receive comments on it, the Service
decided to postpone the hearing until a revised notice could be
published to announce the limitations imposed by, and to thereby avoid
inadvertent violations of, the court order.
On December 22, 1993, the court that issued the November 9 order
issued another order providing, in most relevant part, as follows:
Federal defendants and defendant-intervenor, and those acting in
active concert with them, are hereby PERMANENTLY ENJOINED from
publishing, employing and relying upon the Advisory Committee report
* * * for any purpose whatsoever, directly or indirectly, in the
process of determining whether to list the Alabama sturgeon as an
endangered species.
In order to give more ample notice than a January 13, 1994, hearing
would have allowed, the second public hearing is rescheduled for
January 31, 1994. The hearing will allow additional oral statements to
be presented (of course, written comments will also be accepted and
will be given equal consideration). The time allocated for individual
oral statements may be limited if the number of parties present at the
hearing, or if the conduct of the individual commenter, necessitate
such a limitation. There is no limit, however, on the length or volume
of written comments or materials presented at the hearing or mailed to
the Service office in the ADDRESSES section.
In keeping with the court restrictions issued in Alabama-Tombigbee
Rivers Coalition v. Fish and Wildlife Service, Civ. No. 93-AR-2322-S,
the Service considers itself compelled to enforce the following
constraints on the submission of oral and written comments while the
court restrictions remain in effect:
(1) Individuals or organizations cannot refer to the scientific
report, issued on November 5, 1993, or to any drafts or other
product derived from the preparation of that report, in presenting
any oral statement or written comment; and,
(2) Individuals or organizations cannot attempt to bolster their
oral or written comments or opinions by reference to the scientific
report as authority.
The Departmental hearing officer at the hearing on January 31,
1994, will be authorized to terminate the opportunity to speak of any
person making a statement if, in the judgment of the hearing officer,
that person disregards the instructions not to address the scientific
report or its contents. Written comments or materials that contain
information that violates the above restrictions will be marked and
thereafter excluded from the administrative record while the court
restrictions remain in effect.
The Service intends that any final action resulting from the
proposed rule will be as accurate and as effective as possible. Except
for the court-imposed restrictions set out above, the Service
encourages the submission of all individual scientific opinions,
biological data, and other relevant scientific data that will assist in
arriving at the ``best scientific and commercial data available,'' as
mandated by section 4 of the Endangered Species Act.
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Dated: January 5, 1994.
Richard N. Smith,
Acting Director, Fish and Wildlife Service.
[FR Doc. 94-520 Filed 1-6-94; 8:45 am]
BILLING CODE 4310-55-M
Complete official Federal Register PDF
FR Doc. 94-367 Control, Custody, Care, Treatment and Instruction of Inmates; Drug Abuse Treatment Programs
[Federal Register Volume 59, Number 5 (Friday, January 7, 1994)]
[Proposed Rules]
[Pages 1240-1242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-367]
[[Page Unknown]]
[Federal Register: January 7, 1994]
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 545, 550
RIN 1120-AA16
Control, Custody, Care, Treatment and Instruction of Inmates;
Drug Abuse Treatment Programs
AGENCY: Bureau of Prisons, Justice.
ACTION: Proposed rule.
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SUMMARY: In this document, the Bureau of Prisons is proposing to amend
its rule on Chemical Abuse Programs by renaming it as Drug Abuse
Treatment Programs, by expanding programming available to inmates, and
by requiring participation from certain inmates. Any inmate who has
been recommended for drug programming by the sentencing judge, or whose
presentence investigation contains evidence that alcohol or other drug
use contributed to the commission of the instant offense, or for whom
alcohol or drug abuse was a reason for violation of parole or probation
will be required to participate in drug abuse education courses.
Further program opportunities are presented through voluntary
participation in residential and non-residential programs and through
transitional services. This amendment also proposes conforming changes
with respect to program eligibility and inmate financial responsibility
requirements and with respect to mandatory work requirements. This
amendment is intended to fulfill statutory requirements to make
available to inmates appropriate substance abuse treatment.
DATES: Comments due by March 8, 1994.
ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC room 754,
320 First Street, NW., Washington, DC 20534.
FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General
Counsel, Bureau of Prisons, phone (202) 514-6655.
SUPPLEMENTARY INFORMATION: The Bureau of Prisons is proposing to amend
its regulations on Chemical Abuse Programs. A final rule on this
subject was published in the Federal Register on July 18, 1986 (51 FR
26129). The Bureau is also proposing conforming or related amendments
to its regulations on Inmate Financial Responsibility and on Inmate
Work and Performance Pay Program. A final rule on Inmate Financial
Responsibility was published in the Federal Register on May 21, 1991
(56 FR 23477). A final rule on Inmate Work and Performance Pay was
published in the Federal Register on October 1, 1984 (49 FR 38915), and
was amended on May 21, 1991 (56 FR 23478) and on July 10, 1991 (56 FR
31531).
Section 2903 of Public Law 101-647 (18 U.S.C. 3621(b)) requires the
Bureau to make available appropriate substance abuse treatment for each
inmate the Bureau determines has a treatable condition of substance
addiction or abuse. Existing Bureau regulations in subpart F
(Secs. 550.50 through 550.51) of 28 CFR part 550 allow for the
voluntary participation by inmates in chemical abuse programs. This
proposed amendment renames such programming as drug abuse treatment
programs and distinguishes between mandatory and voluntary requirements
for inmate participation in these programs.
Proposed Sec. 550.52 requires participation in a drug abuse
education course by any inmate who has been recommended for drug
programming by the sentencing judge, or whose presentence investigation
contains evidence that alcohol or other drug use contributed to the
commission of the instant offense, or for whom alcohol or drug abuse
was a reason for violation of parole or probation. This section
includes provision for exemption to the mandatory requirement.
Participation by other inmates in drug abuse treatment programs remains
voluntary, but such participation requires recommendation by the
screening psychologist or drug abuse treatment staff. The section
defines program completion and notes the effects of program failure for
inmates whose participation is required.
Section 550.53 specifies requirements for participation in an
institution's residential and non-residential program, while
Sec. 550.54 covers transitional services available to inmates.
This proposed amendment makes conforming changes to the Bureau's
provisions on inmate financial responsibility (28 CFR 545.11) to
specify that an inmate must meet his or her financial program
responsibility obligations before being able to receive an incentive
for his or her residential program participation. Another conforming
change is being made to the provisions on institution work and
performance pay (28 CFR 545.23) to allow for an inmate's voluntary
participation in drug programming in lieu of working full time.
Interested persons may participate in this proposed rulemaking by
submitting data, views, or arguments in writing to the Bureau of
Prisons, 320 First Street, NW., HOLC Room 754, Washington, DC 20534.
Comments received during the comment period will be considered before
final action is taken. All comments received remain on file for public
inspection at the above address. The proposed rule may be changed in
light of the comments received. No oral hearings are contemplated.
The Bureau of Prisons has determined that this rule is not a
significant regulatory action for the purpose of E.O. 12866. After
review of the law and regulations, the Director, Bureau of Prisons has
certified that this rule, for the purpose of the Regulatory Flexibility
Act (Pub. L. 96-354), does not have a significant impact on a
substantial number of small entities.
List of Subjects in 28 CFR Parts 545 and 550
Prisoners.
Kathleen M. Hawk,
Director, Bureau of Prisons.
Accordingly, pursuant to the rulemaking authority vested in the
Attorney General in 5 U.S.C. 552(a) and delegated to the Director,
Bureau of Prisons in 28 CFR 0.96(p), parts 545 and 550 in subchapter C
of 28 CFR, chapter V are proposed to be amended as set forth below.
SUBCHAPTER C--INSTITUTIONAL MANAGEMENT
PART 550--DRUG PROGRAMS
1. The authority citation for 28 CFR part 550 is added to read as
follows, and all other authority citations within the part are removed:
Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042,
4081, 4082 (Repealed in part as to offenses committed on or after
November 1, 1987), 4251-4255, 5006-5024 (repealed October 12, 1984
as to conduct occurring after that date), 5039; 28 U.S.C. 509, 510;
28 CFR 0.95-0.99.
2. Subpart F, consisting of Secs. 550.50 and 550.51, is revised to
consist of Secs. 550.50 through 550.54 as follows:
Subpart F--Drug Abuse Treatment Programs
Sec.
550.50 Purpose and scope.
550.51 Institution staff roles/responsibilities.
550.52 Drug abuse education course.
550.53 Institution residential and non-residential program.
550.54 Transitional services.
Subpart F--Drug Abuse Treatment Programs
Sec. 550.50 Purpose and scope.
The Bureau of Prisons provides, to the extent practicable,
appropriate drug abuse treatment programs to inmates.
Sec. 550.51 Institution staff roles/responsibilities.
(a) The Warden shall designate a Drug Abuse Treatment Program
Coordinator (DATC) for his/her institution.
(b) The DATC shall ensure that:
(1) Each institution shall provide new inmates during the Admission
and Orientation information about drug abuse treatment opportunities
and procedures available at the institution and throughout the Bureau;
and
(2) A psychologist or drug abuse treatment staff member shall
screen all new institution admissions for drug abuse problems.
(c) The DATC may designate a drug abuse treatment specialist to
conduct drug education or drug abuse treatment in non-residential or
residential settings.
Sec. 550.52 Drug abuse education course.
(a) An inmate is required to participate in the institution's drug
abuse education course if that inmate has been sentenced or returned to
custody as a violator after September 30, 1991 and it is determined by
unit and/or drug abuse treatment program staff, through a combination
of interview and file review, that:
(1) There is evidence in the Presentence Investigation that alcohol
or other drug use contributed to the commission of the instant offense;
(2) Alcohol or other drug use was a reason for violation of either
supervision or BOP community status (CCC placement) for which the
inmate is now incarcerated; or
(3) The inmate was recommended for drug programming during
incarceration by the sentencing judge. An inmate may be exempted from
the required drug abuse education course due to cognitive impairment or
other learning disabilities only after evaluation and recommendation by
a psychologist. An inmate may also be exempted from the drug abuse
education course if that inmate has volunteered for immediate admission
to a residential drug abuse treatment program, and then proceeds to
complete that program.
(b) An inmate who is not required by paragraph (a) of this section
to participate in the drug abuse education course, but for whom
participation is recommended or approved by the screening psychologist
or drug abuse treatment staff for participation, shall be offered the
opportunity to participate voluntarily in the drug abuse education
course, provided it is approved by the DATC, space is available, and
the inmate signs an agreement acknowledging the requirements for
participating in this course.
(c) Completion of the drug abuse education course requires
participating in, and passing an examination on the course. A
certificate of achievement will be awarded to all who successfully
complete the program. Inmates required to participate in this program
ordinarily are provided at least three chances to pass the final
examination before privileges are lost (see paragraph (d) of this
section).
(d) Any inmate who is required by paragraph (a) of this section to
participate in the drug abuse education course, but who refuses this
participation, who withdraws, who is expelled, or who otherwise fails
to meet the attendance and testing standards shall be held at the
lowest pay grade within the institution and shall be ineligible for
community programs. The Warden, for good cause, may make exception to
this paragraph, with such exemptions documented in writing.
Sec. 550.53 Institution residential and non-residential program.
(a) Participation by an inmate in an institution's residential and/
or nonresidential drug treatment program is voluntary, but such
participation must be recommended by unit and/or drug treatment staff.
(1) An inmate may apply for these programs by submitting a request
to a staff member (ordinarily, a member of the inmate's unit team or
the DATC).
(2) An inmate who volunteers to participate in one of the drug
abuse treatment programs is required to sign an agreement acknowledging
his/her program responsibility.
(b) An inmate may apply for an institution's residential treatment
program at any time during that inmate's incarceration. Residential
treatment ordinarily consists of treatment in a unit-based setting
within the institution. Where an institution does not have a
residential program, the unit team, in coordination with the DATC, may
consider the inmate for transfer to an institution with this type of
program.
(c) An inmate may receive incentives for his or her involvement in
the residential program. These incentives may include, but are not
limited to, the following.
(1) Limited financial awards, based upon the inmate's achievement/
completion of program phases.
(2) Consideration for the maximum period of time (currently 180
days) in a Community Corrections Center placement, provided the inmate
is otherwise eligible for this designation.
(3) Local institution incentives such as preferred living quarters
or special recognition privileges. An inmate must meet his/her
financial program responsibility obligations (see 28 CFR part 545)
prior to being able to receive an incentive for his/her residential
program participation.
(d) An inmate may voluntarily withdraw from a residential drug
abuse program or, based on disruptive or negative behavior, may be
removed by staff. Removal from the residential program is within the
discretion of the DATC, and may result, in part, in the inmate's being
returned to his/her prior institution (when the inmate had been
specifically transferred for the purpose of program participation),
and/or return of tangible incentives previously achieved.
(e) When residential treatment programming cannot be used due to
time constraints, staff may refer the inmate for the institution's non-
residential drug treatment. Non-residential treatment ordinarily
consists of individual and/or group counseling and self-help
programming.
Sec. 550.54 Transitional services.
(a) Transitional treatment programming is required for all inmates
completing an institutions's residential treatment program.
Transitional treatment includes treatment provided to inmates who, upon
completing the residential program, return to the general population of
that or another institution. An inmate's refusal to participate in this
program is considered a program failure and disqualifies the inmate for
any additional incentives consideration, and may result in the inmate's
redesignation.
(b) An inmate who successfully completes a residential drug abuse
program and who, based on eligibility, is transferred to a Community
Corrections Center (CCC), is required to participate in a community-
based treatment program each week, in addition to the required
employment and other program activities of the CCC. The inmate's
failure to meet the requirements of treatment may result in the
inmate's being returned to the institution for refusing a program
assignment.
(c) Staff may offer an inmate who has not been involved in the
institution's drug abuse treatment program the opportunity to become
involved in the transitional drug treatment program as part of the
inmate's CCC placement. In addition, with DATC approval, an inmate may
volunteer, and be accepted for transitional drug treatment programming.
3. The authority citation for 28 CFR part 545 continues to read as
follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3013, 3571, 3621, 3622, 3624,
3663, 4001, 4042, 4081, 4082 (Repealed in part as to offenses
committed on or after November 1, 1987), 4126, 5006-5024 (Repealed
October 12, 1984 as to offenses committed after that date), 5039; 28
U.S.C. 509, 510; 28 CFR 0.95-0.99.
4. In Sec. 545.11, a new paragraph (d)(11) is added to read as
follows:
Sec. 545.11 Procedures.
* * * * *
(d) * * *
(11) The inmate will not receive an incentive for participation in
residential drug treatment programs.
5. In Sec. 545.23, paragraph (a) is amended by revising the last
sentence to read as follows:
Sec. 545.23 Inmate work/program assignment.
(a) * * * An inmate, for whom educational, vocational, or drug
treatment participation is not required by either policy or statute,
may request and, upon approval of the Warden or designee, participate
in an educational or vocational training program or drug treatment
program rather than work full-time.
* * * * *
6. In Sec. 545.25, new paragraph (d) is added to read as follows:
Sec. 545.25 Eligibility for performance pay.
* * * * *
(d) An inmate who is required by 28 CFR 550.51 (c)(1) to
participate in drug education programming but who fails to do so
because he or she refuses participation, withdraws, is expelled, or
fails to meet attendance and testing standards, shall be held at the
lowest pay grade within the institution.
[FR Doc. 94-367 Filed 1-6-94; 8:45 am]
BILLING CODE 4410-05-P
Complete official Federal Register PDF
FR Doc. 94-363 Special Conditions; Rolls-Royce Model(s) RB211-Trent-875-17/-877- 17/-884-17 Turbofan Engines
[Federal Register Volume 59, Number 5 (Friday, January 7, 1994)]
[Proposed Rules]
[Pages 984-986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-363]
[[Page Unknown]]
[Federal Register: January 7, 1994]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 33
[Docket No. 93-ANE-65; Notice No. 33-ANE-04]
Special Conditions; Rolls-Royce Model(s) RB211-Trent-875-17/-877-
17/-884-17 Turbofan Engines
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed special conditions.
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SUMMARY: This notice proposes special conditions for the Rolls-Royce
Model(s) RB211-Trent-875-17, -877-17, and -884-17 turbofan engines. The
applicable regulations do not contain adequate or appropriate safety
standards for the protection of these systems from medium and large
bird ingestion. This notice proposes the additional safety standards
which the Administrator considers necessary to establish a level of
safety equivalent to that established by the airworthiness standards of
Part 33 of the Federal Aviation Regulations (FAR).
DATES: Comments must be submitted on or before February 22, 1994.
ADDRESSES: Comments on this proposal may be submitted in triplicate to:
Federal Aviation Administration (FAA), New England Region, Office of
the Assistant Chief Counsel, Attn: Rules Docket No. 93-ANE-65, 12 New
England Executive Park, Burlington, Massachusetts 01803-5299. Comments
must be marked: Docket No. 93-ANE-65. Comments may be inspected at this
location between 8 a.m. and 4:30 p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT:
John Golinski, Engine and Propeller Standards Staff, ANE-110, Engine
and Propeller Directorate, Aircraft Certification Service, FAA, New
England Region, 12 New England Executive Park, Burlington,
Massachusetts 01803-5229; telephone (617) 238-7119; fax (617) 238-7199.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed special conditions by submitting such written data, views, or
arguments as they may desire. Communications should identify the Rules
Docket number and be submitted in triplicate to the address specified
under ADDRESSES. All communications received on or before the closing
date for comments, specified under DATES, will be considered by the
Administrator before taking action on the proposal. The proposal
contained in this notice may be changed in light of the comments
received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed special
conditions. All comments submitted will be available in the Rules
Docket for examination by interested persons, both before and after the
closing date for comments. A report summarizing each substantive public
contact with FAA personnel concerning this proposal will be filed in
the docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit with those comments a
self-addressed, stamped postcard on which the following statement is
made: ``Comments to Docket No. 93-ANE-65.'' The postcard will be date
stamped and returned to the commenter.
Background
On August 4, 1992, Rolls-Royce applied for type certification of
Rolls-Royce Model(s) RB211-Trent-870-17, -877-17, and -884-17 turbofan
engines. The application for type certification of the Model RB211-
Trent-870-17 turbofan engine was withdrawn and a new application for
type certification of the Model RB211-Trent-875-17 was made on April 6,
1993. The FAA has determined that the current foreign object ingestion
requirements of Sec. 33.77(a) for four pound birds; and Sec. 33.77(b)
for one and one-half pound flocking birds, do not adequately represent
the bird threat encountered in service. A study of in-service bird
ingestion events has indicated a need to modify the bird ingestion
requirements of this section to ensure design integrity and demonstrate
an adequate level of safety.
The FAA has concluded that additional safety standards must be
applied to Rolls-Royce Model(s) RB211-Trent-875-17, -877-17, and -844-
17 turbofan engines to demonstrate that they are capable of acceptable
operation after medium and large bird ingestion. The applicable
airworthiness requirements do not contain adequate or appropriate
safety standards for type certification with respect to the new design
criteria. This new design criteria assumes the actual bird threat
encountered in service.
Type Certification Basis
Under the provisions of Sec. 21.101 of the FAR, Rolls-Royce must
show that the Rolls-Royce Model(s) RB211-Trent-875-17, -877-17, and -
884-17 turbofan engines meet the requirements of the applicable
regulations in effect on the date of the application. Those Federal
Aviation Regulations are Sec. 21.21 and Part 33, effective February 1,
1965, as amended through August 10, 1990, Amendment 33-14.
The Administrator finds that the applicable airworthiness
regulations in part 33, as amended, do not contain adequate or
appropriate safety standards for the Rolls-Royce Model(s) RB211-Trent-
800 series turbofan engine because of its unique design criteria.
Therefore, the Administrator proposes these special conditions under
the provisions of Sec. 21.16 to establish a level of safety equivalent
to that established in the regulations.
Special conditions, as appropriate, are issued in accordance with
Sec. 11.49 of the FAR after public notice and opportunity for comment,
as required by Secs. 11.28 and 11.29(b), and become part of the type
certification basis in accordance with Sec. 21.101(b)(2).
Conclusion
This action affects only Rolls-Royce Model(s) RB211-Trent-875-17, -
877-17, and -884-17 turbofan engines. It is not a rule of general
applicability and affects only the manufacturer who applied to the FAA
for approval of these new design criteria on the engine.
List of Subjects in 14 CFR Part 33
Air transportation, Aircraft, Aviation safety, Safety.
The authority citation for these special conditions continues to
read as follows:
Authority: 49 U.S.C. App. 1354(a), 1421, 1423; 49 U.S.C. 106(g);
14 CFR 21.16, and 14 CFR 11.28.
The Proposed Special Conditions
Accordingly, the Federal Aviation Administration (FAA) proposes the
following special conditions as part of the type certification basis
for the Rolls-Royce Model(s) RB211-Trent-875-17, -877-17, and -884-17
turbofan engines.
In lieu of the requirements of FAR Sec. 33.77(a) and (b), the
following tests and analyses must be conducted, unless compliance can
be shown by alternate methods acceptable to the Administrator:
(a) It must be shown that the ingestion of a single large bird,
under the conditions prescribed in Appendix A, will not cause the
engine to:
(1) catch fire;
(2) release hazardous fragments through the engine casing;
(3) generate loads greater than those ultimate loads specified
under Sec. 33.23(a);
(4) lose the ability to be shut down; or
(5) generate other conditions hazardous to the aircraft.
(b) Alternatively, if compliance with the bird ingestion
requirements of paragraph (a) of this special condition is not
established, the applicant must demonstrate that compliance with the
containment requirements of Sec. 33.94(a) constitutes a more severe
demonstration than the requirements of paragraph (a) of this special
condition. The engine type certification documentation will then be
endorsed to reflect this alternative compliance method.
Appendix A--Large Bird Ingestion Test Procedures
(a) The test shall be conducted with the engine stabilized at
rated takeoff thrust for the test day ambient conditions prior to
the ingestion.
(b) The test shall be conducted using one eight-pound bird
targeted at the most critical location and ingested at a bird speed
of 200 knots.
(c) Power lever movement is not permitted within 15 seconds
following the ingestion event.
End of Appendix A
(c) It must be shown that the ingestion of medium birds, under the
conditions prescribed in Appendix B, will not cause the engine to:
(1) Sustain more than a 25 percent thrust loss;
(2) Be shut down during the required run-on demonstration
prescribed in Appendix B;
(3) Exceed any engine operating limitations to the extent that the
engine cannot comply with this section; or
(4) Generate other conditions hazardous to the aircraft.
Appendix B--Medium Bird Ingestion Test Procedures
(a) The ingestion test shall be conducted with the engine
stabilized at rated takeoff thrust for the test day ambient
conditions prior to the ingestion.
(b) The test shall be conducted to simulate a flock encounter,
with all birds ingested within approximately one second, and using
the more severe of the following bird weight/quantity combinations:
(1) Six 1.5-pound and one 2.5-pound birds.
(2) Four 2.5-pound birds.
(c) Bird targeting shall be one 2.5-pound bird at the core
primary flow path, and the remaining birds targeted at critical fan
rotor locations.
(d) Bird ingestion velocity shall be the most critical velocity
between V1 minimum through 250 knots.
(e) Power lever movements between stages must occur in 10
seconds or less. The following test schedule will be used as the
post-ingestion run-on demonstration:
(1) Two minutes with no power lever movement.
(2) Three minutes at 75 percent of takeoff thrust.
(3) Six minutes at 75 percent of maximum continuous thrust.
(4) Six minutes at 50 percent of maximum continuous thrust.
(5) One minute at approach idle.
(6) Two minutes at 75 percent of takeoff thrust.
(7) Retard throttle to idle.
(8) Shut down the engine.
(f) An analysis or component/engine test(s) acceptable to the
Administrator shall be conducted to determine the critical ingestion
parameters for medium bird ingestion that relates to airspeeds from
V1 minimum through 250 knots. The analysis or test(s) must also show
satisfactory engine operation for medium bird ingestion at the most
severe ambient operating condition approved for the engine that may
be experienced in service.
End of Appendix B
(d) It must be shown that engine spinner impact by one large bird
and by the single largest medium bird, under the respective conditions
prescribed in Appendices A and B, will not affect the engine to the
extent that it cannot comply with the requirements of paragraphs (a)
and (b) of this special condition.
Issued in Burlington, Massachusetts, on December 29, 1993.
Jay J. Pardee,
Acting Manager, Engine and Propeller Directorate, Aircraft
Certification Service.
[FR Doc. 94-363 Filed 1-6-94; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 94-348 Acreage Limitation Reporting Threshold
[Federal Register Volume 59, Number 5 (Friday, January 7, 1994)]
[Proposed Rules]
[Page 997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-348]
[[Page Unknown]]
[Federal Register: January 7, 1994]
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DEPARTMENT OF THE INTERIOR
Bureau of Reclamation
43 CFR Part 426
[RIN: 1006-AA31]
Acreage Limitation Reporting Threshold
AGENCY: Bureau of Reclamation, Interior.
ACTION: Withdrawal of notice of intent to propose rulemaking.
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SUMMARY: The Bureau of Reclamation (Reclamation) is withdrawing its
intention to conduct rulemaking to revise the threshold that exempts
landholders from the information requirements of the Reclamation Reform
Act of 1982 (RRA). The notice of intent was published in 57 FR 47437,
Oct. 16, 1992. Instead, the threshold issue will be included in an
upcoming, proposed westwide rulemaking. This action eliminates the need
for a separate rulemaking for threshold changes, thereby allowing for a
more economical, comprehensive westwide rulemaking.
FOR FURTHER INFORMATION CONTACT: Mr. Terry Lynott, Director, Policy and
Programs, Bureau of Reclamation, Denver Office, P.O. Box 25007, Denver
CO 80225.
SUPPLEMENTARY INFORMATION: The RRA and 43 CFR part 426 require
landholders to submit forms annually in order to be eligible to receive
irrigation water from Reclamation projects. Landholders disclose the
Reclamation project land in their holdings on forms known as
``certification and reporting forms'' and provide other information
pertinent to their compliance with Reclamation law. Currently, 43 CFR
426.10(g) exempts landholders from the forms requirements if the total
of their direct and indirect interests in Reclamation project
landholdings is 40 acres or less. Reclamation's preliminary review
indicated that an exemption threshold higher than 40 acres may improve
Reclamation's ability to administer the law while reducing the
reporting burden on the public. Therefore, Reclamation published a
notice of intent in 57 FR 47437 on October 16, 1992, to conduct
rulemaking to revise the 40-acre reporting threshold.
Reclamation is presently undertaking a westwide EIS and rulemaking
to revise the regulations for implementing the RRA as a term of a
settlement agreement. The settlement agreement, filed with the 9th
Circuit Court on September 17, 1993, in the case Natural Resources
Defense Council, et al. v. Beard, requires the draft EIS and rules to
be prepared by December 1994, and the final EIS and rules, by August
1995. Revising the 40-acre reporting threshold, found in 43 CFR part
426, will be addressed in the above westwide EIS and rulemaking. It
will be more economical to include the reporting threshold issue in the
westwide EIS and rulemaking rather than address it separately and will
also result in a more comprehensive westwide EIS and rulemaking.
Dated: December 28, 1993.
Donald R. Glaser,
Deputy Commissioner.
[FR Doc. 94-348 Filed 1-6-94; 8:45 am]
BILLING CODE 4310-94-M
Complete official Federal Register PDF
FR Doc. 94-341 Codes and Standards for Nuclear Power Plants; Subsection IWE and Subsection IWL
[Federal Register Volume 59, Number 5 (Friday, January 7, 1994)]
[Proposed Rules]
[Pages 979-984]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-341]
[[Page Unknown]]
[Federal Register: January 7, 1994]
VOL. 59, NO. 5
Friday, January 7, 1994
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 50
RIN 3150-AC93
Codes and Standards for Nuclear Power Plants; Subsection IWE and
Subsection IWL
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) proposes to amend its
regulations to incorporate by reference the 1992 Edition with the 1992
Addenda of Subsection IWE, ``Requirements for Class MC and Metallic
Liners of Class CC Components of Light-Water Cooled Power Plants,'' and
Subsection IWL, ``Requirements for Class CC Concrete Components of
Light-Water Cooled Power Plants,'' of Section XI, Division 1, of the
American Society of Mechanical Engineers Boiler and Pressure Vessel
Code (ASME Code) with specified modifications and a limitation.
Subsection IWE of the ASME Code provides rules for inservice
inspection, repair, and replacement of Class MC pressure retaining
components and their integral attachments and of metallic shell and
penetration liners of Class CC pressure retaining components and their
integral attachments in light-water cooled power plants. Subsection IWL
of the ASME Code provides rules for inservice inspection and repair of
the reinforced concrete and the post-tensioning systems of Class CC
components. Licensees would be required to incorporate Subsection IWE
and Subsection IWL into their routine inservice inspection (ISI)
program. Licensees would also be required to expedite implementation of
the containment examinations and complete the expedited examination in
accordance with Subsection IWE and Subsection IWL within 5 years of the
effective date of this rule. Provisions have been proposed that would
prevent unnecessary duplication of examinations between the expedited
examination and the routine 120-month ISI examinations. Subsection IWE
and Subsection IWL have not been previously incorporated by reference
into the NRC regulations. This proposed amendment would specify
requirements to assure that the critical areas of containments are
routinely inspected to detect defects that could compromise a
containment's pressure-retaining integrity.
DATES: Comment period expires March 23, 1994. Comments received after
this date will be considered if it is practical to do so, but assurance
of consideration cannot be given except as to comments received on or
before this date.
ADDRESSES: Written comments or suggestions may be submitted to the
Secretary of the Commission, U.S. Nuclear Regulatory Commission,
Washington, DC 20555, Attention: Docketing and Service Branch. Deliver
comments to: 11555 Rockville Pike, Rockville, MD between 7:45 am and
4:15 pm Federal workdays. Copies of the regulatory analysis, the
environmental assessment and finding of no significant impact, the
supporting statement submitted to the Office of Management and Budget,
and comments received may be examined in the Commission's Public
Document Room at 2120 L Street, NW. (Lower Level), Washington, DC.
FOR FURTHER INFORMATION CONTACT: Mr. W.E. Norris, Division of
Engineering, Office of Nuclear Regulatory Research, U.S. Nuclear
Regulatory Commission, Washington, DC 20555, telephone (301) 492-3805,
or Mr. H.L. Graves, Division of Engineering, Office of Nuclear
Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC
20555, telephone (301) 492-3813.
SUPPLEMENTARY INFORMATION:
Background
The NRC is taking the proposed action for the purpose of ensuring
that containments continue to maintain or exceed minimum accepted
design wall thicknesses and prestressing forces as provided for in
industry standards used to design containments (e.g., Section III and
Section VIII of the ASME Code, and the American Concrete Institute
Standard ACI-318), as reflected in license conditions, technical
specifications, and licensee commitments (e.g., the Final Safety
Analysis Report). The NRC also believes enhanced ISI examinations are
needed and are justified to supplement existing requirements specified
in General Design Criterion (GDC) 16, and GDC 53, appendix A to 10 CFR
part 50, and appendix J to 10 CFR part 50. Appendix J requires a
general visual inspection of the containment but does not provide
specific guidance on how to perform the necessary containment
examinations. This has resulted in a large variation with regard to the
performance and the effectiveness of containment inspections. In view
of the increasing rate of occurrences of degradation in containments
and variability of present containment examinations, the NRC has
determined that it is necessary to include more detailed requirements
for the periodic examination of containment structures in the
regulations to assure that the critical areas of containments are
periodically inspected to detect defects that could compromise the
containment's pressure-retaining and leak-tight capability. Recent
changes and additions to the ASME Code include provisions to address
the concerns outlined above. The NRC proposes to make these provisions
mandatory by amending 10 CFR 50.55a to incorporate by reference these
additional portions of the ASME Code (Subsection IWE and Subsection
IWL). Subsection IWE and Subsection IWL have not been previously
incorporated by reference into the NRC's regulations.
The rate of occurrence of corrosion and degradation of containments
has been increasing at operating nuclear power plants. Since 1986,
twenty-one (21) instances of corrosion in steel containments have been
reported. In two cases, thickness measurements of the walls revealed
areas where the wall thickness was at or below the minimum design
thickness. Since the early 1970s, thirty-one (31) incidents of
containment degradation related to post-tensioning systems of concrete
containments have been reported. Four recent additional incidents which
involved grease leakage from tendons have been investigated. In
addition to grease leakage, these incidents showed signs of leaching of
the concrete.
Over one-third of the operating containments have experienced
corrosion or other degradation. Almost one-half of these occurrences
were found by the NRC through its inspections or audits of plant
structures, or by licensees because they were alerted to a degraded
condition at another site. Examples of degradation not found by
licensees, but initially detected at plants through NRC inspections
include: Steel containment shell corrosion in the drywell sand cushion
region (wall thickness reduced to below minimum design thickness);
steel containment shell torus corrosion (wall thickness at or near
minimum design thickness); grease leakage from the tendons of
prestressed concrete containments, and water seepage, as well as
concrete cracking in concrete containments.
There are several GDC criteria and ASME Code sections which
establish minimum requirements for the design, fabrication,
construction, testing, and performance of structures, systems, and
components important to safety in water-cooled nuclear power plants.
Criterion 16, ``Containment design,'' requires the provision of reactor
containment and associated systems to establish an essentially leak-
tight barrier against the uncontrolled release of radioactivity into
the environment and to ensure that the containment design conditions
important to safety are not exceeded for as long as required for
postulated accident conditions. Section III and Section VIII of the
ASME Code, and the American Concrete Institute provide design
specifications for minimum wall thicknesses and prestressing forces of
containments, and these are reflected in license conditions, technical
specifications, and licensee commitments for the operating plants.
Criterion 53, ``Provisions for containment testing and
inspection,'' requires that the reactor containment design permit: (1)
Appropriate periodic inspection of all important areas, such as
penetrations; (2) an appropriate surveillance program; and (3) periodic
testing at containment design pressure of the leak-tightness of
penetrations which have resilient seals and expansion bellows. Appendix
J, ``Primary Reactor Containment Leakage Testing for Water-Cooled Power
Reactors,'' of 10 CFR part 50 contains specific rules for leakage
testing of containments. Paragraph V. A. of appendix J requires that a
general inspection of the accessible interior and exterior surfaces of
the containment structures and components be performed prior to any
Type A test to uncover any evidence of structural deterioration that
may affect either the containment structural integrity or leak-
tightness. (Type A test means tests intended to measure the primary
reactor containment overall integrated leakage rate: (1) After the
containment has been completed and is ready for operation, and (2) at
periodic intervals thereafter). None of these existing requirements,
however, provide specific guidance on how to perform the necessary
containment examinations. This lack of guidance has resulted in a large
variation in licensee containment examination programs, such that there
have been cases of noncompliance with GDC 16. Based on the results of
inspections and audits, as well as plant operational experiences, it is
clear that many licensee containment examination programs have not
detected degradation that could ultimately result in a compromise to
the pressure-retaining capability. Some containment structures have
also been found to have undergone a significant level of degradation
that was not detected by these programs.
The NRC believes that more specific ISI requirements, which expand
upon existing requirements for the examination of containment
structures in accordance with GDC 53 and appendix J , are needed and
are justified for the purpose of ensuring that containments continue to
maintain minimum design wall thicknesses and prestressing forces as
provided for in industry standards used to design containments (e.g.,
Section III and Section VIII of the ASME Code, and the American
Concrete Institute Standard ACI-318), as reflected in license
conditions, technical specifications, and written licensee commitments
(e.g., the Final Safety Analysis Report). There exists a serious
concern, based on actual operating experience, regarding continued
compliance by the operating plants with existing requirements for
ensuring containment minimum design wall thicknesses and prestressing
forces if the proposed action is not taken. The NRC also believes that
the occurrences of corrosion and other degradation discussed above
would have been detected by licensees implementing the comprehensive
periodic examinations set forth in Subsection IWE and Subsection IWL of
the ASME Code proposed for incorporation by reference into 10 CFR
50.55a.
The Nuclear Management and Resources Council (NUMARC) has developed
a number of industry reports to address license renewal issues. Two of
them, one for PWR containments and the other for BWR containments, were
developed for the purpose of managing age-related degradation of
containments on a generic basis. The NUMARC plan for containments
relies on the examinations contained in Subsection IWE and Subsection
IWL to manage age-related degradation, and this plan assumes that these
examinations are ``in current and effective use.'' In the BWR
Containment Industry Report, NUMARC concluded that ``On account of
these available and established methods and techniques to adequately
manage potential degradation due to general corrosion of freestanding
metal containments, no additional measures need to be developed and, as
such, general corrosion is not a license renewal concern if the
containment minimum wall thickness is maintained and verified.''
Similarly, in the PWR Containment Industry Report, NUMARC concluded
that potentially significant degradation of concrete surfaces, the
post-tensioning system, and the liners of concrete containments could
be managed effectively if periodically examined in accordance with the
requirements contained in Subsection IWE and Subsection IWL.
The five modifications, which are contained in one paragraph of the
proposed rule, address two concerns of the NRC. The first concern is
that certain recommendations for tendon examinations that are included
in Regulatory Guide 1.35, Rev. 3, are not addressed in Subsection IWL
(this involves four of the modifications, (ix)(A)-(D)). The ASME Code
has considered these four issues and has adopted them in Subsection
IWL. These issues will be published in future addenda. The second
concern is that if there is visible evidence of degradation of the
concrete (e.g., leaching, surface cracking) there may also be
degradation of inaccessible areas. This fifth modification ((ix)(E))
contains a provision which would require an evaluation of inaccessible
areas when visible conditions exist that could result in degradation of
these areas.
The limitation specifies the 1992 Edition with 1992 Addenda of
Subsection IWE and Subsection IWL as the earliest version of the ASME
Code the NRC finds acceptable. This edition and addenda combination
incorporates the concept of base metal examinations and would provide a
comprehensive set of rules for the examination of post-tensioning
systems. As originally published, Subsection IWE preservice examination
and inservice examination rules focused on the examination of welds.
This weld-based examination philosophy was established in the 1970s as
plants were being constructed. It was based on the premise that the
welds in pressure vessels and piping were the areas of greatest
concern. As containments have aged, degradation of base metal, rather
than welds, has been found to be the issue of concern. The 1991 Addenda
to the 1989 Edition, the 1992 Edition and the 1992 Addenda to Section
XI, Subsection IWE, all have furthered the incorporation of base metal
examinations.
The proposed rulemaking incorporates a provision for an expedited
examination schedule. This expedited examination schedule is necessary
to prevent a delay in the implementation of Subsection IWE and
Subsection IWL (Table 4 of Enclosure 2 lists each plant and the delay
in implementation which would be encountered without an expedited
implementation schedule). Provisions have been incorporated in the
proposed rule so that the expedited examination which would be required
5 years after the effective date of the rule and the routine 120-month
examinations are not duplicated.
The NRC has reviewed the 1992 Edition with the 1992 Addenda of
Subsection IWE and Subsection IWL of Section XI of the ASME Code and
has found that with the specified modifications these subsections of
Section XI address current experience and provide a sound basis for
ensuring the structural integrity of containments. NRC endorsement of
Subsection IWE and Subsection IWL in its regulations would provide a
method of improving containment examination practices by incorporating
rules into the regulatory process that have received industry
participation in their development and acceptance by the NRC.
Existing Sec. 50.55a(g), ``Inservice inspection requirements,''
specifies the requirements for preservice and inservice examinations
for Class 1 (Class 1 refers to components of the reactor coolant
pressure boundary), Class 2 (Class 2 quality standards are applied to
water- and steam-containing pressure vessels, heat exchangers (other
than turbines and condensers), storage tanks, piping, pumps, and valves
that are part of the reactor coolant pressure boundary (e.g., systems
designed for residual heat removal and emergency core cooling)), and
Class 3 (Class 3 quality standards are applied to radioactive-waste-
containing pressure vessels, heat exchangers (other than turbines and
condensers), storage tanks, piping, pumps, and valves (not part of the
reactor coolant pressure boundary)) components and their supports.
Neither Subsection IWE (Class MC--metal containments) nor Subsection
IWL (Class CC--concrete containments) is presently incorporated by
reference into the NRC regulations.
Proposed Sec. 50.55a(g)(4) specifies the containment components to
which the ASME Code Class MC and Class CC inservice inspection
classifications incorporated by reference in this proposed rule would
apply.
Proposed Sec. 50.55a (g)(4) (v)(A), (v)(B), and (v)(C) specify
Subsection IWE and Subsection IWL rules for repairs and replacements of
metal and concrete containments. This is consistent with the long-
standing intent and ongoing application by NRC and licensees to utilize
the rules of Section XI when performing repairs and replacements of
applicable components and their supports.
Proposed Sec. 50.55a(b)(2)(vi) would incorporate a limitation
specifying the 1992 Edition with 1992 Addenda of Subsection IWE and
Subsection IWL as the earliest ASME Code version the NRC finds
acceptable. This edition and addenda combination incorporates the
concept of base metal examinations and provides a comprehensive set of
rules for the examination of post-tensioning systems.
Proposed Sec. 50.55a(b)(2)(ix) would specify five modifications
that must be implemented when using Subsection IWL. Four of these
issues are identified in Regulatory Guide 1.35, Revision 3, but are not
currently addressed in Subsection IWL.
Proposed Sec. 50.55a(g)(4)(v) requires that licensees incorporate
containment examinations as part of their routine 120-month inspection
program. It is recognized that when this rule becomes effective, plants
within 2 years of the end of the 120-month interval may have difficulty
developing and completing the containment examination program in a
timely manner. Therefore, proposed Sec. 50.55a(b)(2)(x) specifies that
licensees with less than 2 years remaining in their present ISI
interval may complete the Subsection IWE and the Subsection IWL
portions of their ISI update within 2 years from the end of the present
ISI interval. This is intended to provide licensees with sufficient
time to develop the initial ISI plan and to facilitate maintenance of
one ISI plan instead of two separate plans (i.e, the current Section XI
ISI plan, and the Subsection IWE and Subsection IWL plan). In order to
further reduce the burden on licensees and NRC staff, the Subsection
IWE and Subsection IWL portions of the ISI plan will not have to be
submitted to the NRC for approval. Licensees may simply retain their
initial Subsection IWE and Subsection IWL plans at the site for audit.
Proposed Sec. 50.55a(g)(6)(ii)(B)(1) would require that licensees
conduct the first containment examinations in accordance with
Subsection IWE and Subsection IWL (1992 Edition with the 1992 Addenda),
modified by proposed Sec. 50.55a(b)(2)(ix) within 5 years of the
effective date of the final rule. This expedited examination schedule
is necessary to prevent possible delays in the implementation of
Subsection IWE by as much as 20 years and Subsection IWL by as much as
15 years. Subsection IWE, Table IWE-2500-1, permits the deferral of
most of the required examinations until the end of the 10-year
inspection interval. Adding the ten years that could pass before some
utilities are required to update their ISI plans, a period of 20 years
could pass before the first examinations would take place. Subsection
IWL is based on a 5-year inspection interval. Adding the possible 10
years before update of existing ISI plans, a period of 15 years could
pass before the examinations were performed by plants that have not
voluntarily adopted the provisions of Regulatory Guide 1.35, Rev. 3.
Expediting implementation of the containment examinations is considered
necessary because of the problems that have been identified at various
plants, the need to establish expeditiously a baseline for each
facility, and the need to identify any existing degradation.
Proposed paragraphs (g)(6)(ii)(B)(2) and (g)(6)(ii)(B)(3) would
each provide a mechanism for licensees to satisfy the requirements of
the routine containment examinations and the expedited examination
without duplication. Paragraph (g)(6)(ii)(B)(2) would permit licensees
to avoid duplicating examinations required by both the periodic routine
and expedited examination programs. This provision is intended to be
useful to those licensees that would be required to implement the
expedited examination during the first periodic interval that routine
containment examinations are required. Paragraph (g)(6)(ii)(B)(3) would
allow licensees to use a recently performed examination of the post-
tensioning system to satisfy the requirements for the expedited
examination of the containment post-tensioning system. This situation
would occur for licensees who perform an examination of the post-
tensioning system using Regulatory Guide 1.35 between the effective
date of this rule and the beginning of the expedited examination.
Submission of Comments in Electronic Format
The comment evaluation process will be improved if each comment is
identified with document title, section heading, and paragraph number
addressed. In addition to the original paper copy, submitters are
encouraged to provide a copy of their letter in an electronic format on
IBM PC compatible 3.5- or 5.25-inch diskettes. Data files should be
provided as WordPerfect documents. ASCII text is also acceptable or, if
formatted text is required, data files should be provided in IBM
Revisable-Form Text/Document Content Architecture (RFT/DCA) format. The
format and version should be identified on the diskette's external
label.
Finding of No Significant Environmental Impact
The Commission has determined under the National Environmental
Policy Act of 1969, as amended, and the Commission's regulations in
subpart A of 10 CFR part 51, that this rule, if adopted, would not be a
major Federal action significantly affecting the quality of the human
environment and therefore an environmental impact statement is not
required.
This proposed rule is one part of a regulatory framework directed
to ensuring containment integrity. Therefore, in the general sense, the
proposed rule would have a positive impact on the environment. The
proposed rule would incorporate by reference in the NRC regulations
requirements contained in the ASME Code for the inservice inspection of
the containments of nuclear power plants. Actions required of
applicants and licensees to implement the proposed rule are of a
routine nature that should not increase the potential for a negative
environmental impact.
The environmental assessment and finding of no significant impact
on which this determination is based are available for inspection at
the NRC Public Document Room, 2120 L Street NW. (Lower Level),
Washington, DC. Single copies of the environmental assessment and the
finding of no significant impact are available from Mr. W.E. Norris,
Division of Engineering, Office of Nuclear Regulatory Research, U.S.
Nuclear Regulatory Commission, Washington, DC 20555, telephone (301)
492-3805, or Mr. H.L. Graves, Division of Engineering, Office of
Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission,
Washington, DC 20555, telephone (301) 492-3813.
Paperwork Reduction Act Statement
This proposed rule amends information collection requirements that
are subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et
seq). This rule has been submitted to the Office of Management and
Budget for review and approval of the paperwork requirements.
The public reporting burden for this collection of information is
estimated to average 4,000 hours per response for development of an
initial inservice inspection plan and 10,000 hours per response for the
update of the plan and periodic examinations, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding this burden estimate
or any other aspect of this collection of information, including
suggestions for reducing this burden, to the Information and Records
Management Branch (MNBB-7714), U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, and to the Desk Officer, Office of
Information and Regulatory Affairs, NEOB-3019, (3150-0011), Office of
Management and Budget, Washington, DC 20503.
Documented Evaluation
The Commission has prepared a draft summary of documented
evaluation on this proposed regulation. The draft evaluation is
available for inspection in the NRC Public Document Room, 2120 L Street
NW. (Lower Level), Washington, DC. Single copies of the analysis may be
obtained from Mr. W.E. Norris, Division of Engineering, Office of
Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission,
Washington, DC 20555, telephone (301)492-3805, or from Mr. H.L. Graves,
Division of Engineering, Office of Nuclear Regulatory Research, U.S.
Nuclear Regulatory Commission, Washington, DC 20555, telephone
(301)492-3813.
The Commission requests public comment on the draft summary of
documented evaluation. Comments on the draft evaluation may be
submitted to the NRC as indicated under the ADDRESSES heading.
Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission hereby certifies that this rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities. This proposed rule affects only the operation of
nuclear power plants. The companies that own these plants do not fall
within the scope of the definition of ``small entities'' set forth in
the Regulatory Flexibility Act or the Small Business Size Standards set
out in regulations issued by the Small Business Administration at 13
CFR part 121. Since these companies are dominant in their service
areas, this proposed rule does not fall within the purview of the Act.
Backfit Statement
The NRC is taking the proposed action for the purpose of ensuring
that containment structures continue to maintain or exceed minimum
accepted design wall thicknesses and prestressing forces as provided
for in industry standards used to design containment structures, as
reflected in license conditions, technical specifications, and licensee
commitments. Therefore, under 10 CFR 50.109(a)(4)(i) a backfit analysis
need not be prepared for this rule. A summary of the documented
evaluation required by Sec. 50.109(a)(4) to support this conclusion is
set forth below.
GDC 16, ``Containment design,'' requires the provision of reactor
containment and associated systems to establish an essentially leak-
tight barrier against the uncontrolled release of radioactivity into
the environment and to ensure that the containment design conditions
important to safety are not exceeded for as long as required for
postulated accident conditions.
Criterion 53, ``Provisions for containment testing and
inspection,'' requires that the reactor containment design permit: (1)
Appropriate periodic inspection of all important areas, such as
penetrations; (2) an appropriate surveillance program; and (3) periodic
testing at containment design pressure of the leak-tightness of
penetrations which have resilient seals and expansion bellows. Appendix
J, ``Primary Reactor Containment Leakage Testing for Water-Cooled Power
Reactors,'' of 10 CFR part 50 contains specific rules for leakage
testing of containments. Paragraph V. A. of appendix J requires that a
general inspection of the accessible interior and exterior surfaces of
the containment structures and components be performed prior to any
Type A test to uncover any evidence of structural deterioration that
may affect either the containment structural integrity or leak-
tightness (Type A test means tests intended to measure the primary
reactor containment overall integrated leakage rate: (1) After the
containment has been completed and is ready for operation, and (2) at
periodic intervals thereafter). None of these existing requirements,
however, provide specific guidance on how to perform the necessary
containment examinations. This lack of guidance has resulted in a large
variation in licensee containment examination programs, such that there
have been cases of noncompliance with GDC 16. Based on the results of
inspections and audits, and plant operational experiences, it is clear
that many licensee containment examination programs have not detected
degradation that could result in a compromise of pressure-retaining
capability. The location and extent of corrosion or degradation in a
containment can be critical to the containment's behavior during an
accident.
The metal containment structure of operating nuclear power plants
were designed in accordance with either Section III, Subsection NE,
``Class MC Components,'' or Section VIII, of the ASME Code. These
subsections contain provisions for the design and construction of metal
containment structures, including methods for determining the minimum
required wall thicknesses. The minimum wall thickness is determined so
that the metal containment structure will continue to maintain its
structural integrity under the various stressors and degradation
mechanisms which act on it.
The American Concrete Institute Standard ACI-318 contains
provisions for designing and constructing the post-tensioning systems
of concrete containment structures, including methods for determining
the prestressing forces. The post-tensioning system is designed so that
the concrete containment structure will continue to maintain its
structural integrity under the various stressors and degradation
mechanisms which act on it.
These requirements for minimum design wall thicknesses and
prestressing forces as provided in these industry standards used to
design containment structures are reflected in license conditions,
technical specifications, and licensee commitments (e.g., the Final
Safety Analysis Report).
The rate of occurrence of corrosion and degradation of containment
structures has been increasing at operating nuclear power plants. Over
one-third of operating containment structures have experienced
corrosion or other degradation. Almost one-half of the occurrences were
first identified by the NRC through its inspections or structural
audits, or by licensees because they were alerted to a degraded
condition at another site. Examples of degradation not found by
licensees, but initially detected at plants through NRC inspections
include (1) corrosion of steel containment shells in the drywell sand
cushion region, resulting in wall thickness reduced to below the
minimum design thickness; (2) corrosion of the torus of the steel
containment shell (wall thickness at or near minimum design thickness);
(3) grease leakage from the tendons of prestressed concrete
containments; and (4) water seepage, as well as concrete cracking in
concrete containments.
The NRC believes that more specific ISI requirements, that expand
upon existing requirements for the examination of containment
structures in accordance with GDC 53, and appendix J are needed and are
justified to ensure that containment structures continue to maintain or
exceed minimum accepted design wall thicknesses and prestressing forces
as reflected in license conditions, technical specifications, or
licensee commitments. Based on actual operating experience, a serious
concern exists regarding continued compliance by the operating plants
with existing requirements for ensuring containment minimum design wall
thicknesses and prestressing forces if the proposed action is not
taken. The NRC also believes that the occurrences of corrosion and
other degradation discussed above would have been detected by licensees
when conducting the comprehensive periodic examinations set forth in
Subsection IWE and Subsection IWL of the ASME Code, as proposed for
incorporation by reference into 10 CFR 50.55a.
Recent changes and additions to the ASME Code include provisions to
address the concerns outlined above; and the staff proposes to make
these provisions mandatory by amending 10 CFR 50.55a to incorporate by
reference these additional portions of the ASME Code (Subsection IWE
and Subsection IWL). The Commission concludes that this proposed
backfit is necessary to ensure compliance with GDCs 16 and 53, appendix
J, minimum design wall thicknesses in metal containments, and the
prestressing forces of concrete containments, which are applicable to
all licensees through license conditions, technical specifications, and
licensee commitments.
List of Subjects in 10 CFR Part 50
Antitrust, Classified information, Criminal Penalties, Fire
protection, Incorporation by reference, Intergovernmental relations,
Nuclear power plants and reactors, Radiation protection, Reactor siting
criteria, Reporting and recordkeeping requirements.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended, the Energy Reorganization
Act of 1974, as amended, and 5 U.S.C. 533, the NRC is proposing to
adopt the following amendments to 10 CFR part 50.
PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION
FACILITIES
1. The authority citation for part 50 continues to read as follows:
Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68
Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234,
83 Stat. 1244, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201,
2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).
Section 50.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851). Section 50.10 also issued under secs. 101,
185, 68 Stat. 936, 955, as amended (42 U.S.C. 2131, 2235); sec. 102,
Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13,
50.54(dd) and 50.103 also issued under sec. 108, 68 Stat. 939, as
amended (42 U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56
also issued under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections
50.33a, 50.55a and Appendix Q also issued under sec. 102, Pub. L.
91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also
issued under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections
50.58, 50.91, and 50.92 also issued under Pub. L. 97-415, 96 Stat.
2073 (42 U.S.C. 2239). Section 50.78 also issued under sec. 122, 68
Stat. 939 (42 U.S.C. 2152). Sections 50.80-50.81 also issued under
sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Appendix F also
issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
2. Section 50.55a is amended by adding paragraphs (b)(2)(vi),
(b)(2)(ix), (b)(2)(x), (g)(4)(v), and (g)(6)(ii)(B), and revising the
introductory text of paragraph (g)(4) to read as follows:
Sec. 50.55a Codes and standards.
* * * * *
(b) * * *
(2) * * *
(vi) Effective edition and addenda of Subsection IWE and Subsection
IWL, Section XI. When using Subsection IWE and Subsection IWL, the 1992
Edition with the 1992 Addenda is the only acceptable Edition and
Addenda.
* * * * *
(ix) Examination of concrete containments.
(A) All grease caps that are accessible must be visually examined
to detect grease leakage or grease cap deformations. Grease caps must
be removed for this examination when there is evidence of grease cap
deformation that indicates deterioration of anchorage hardware.
(B) An Engineering Evaluation Report must be prepared as prescribed
in IWL-3300(a), (b), (c), and (d) when evaluation of consecutive
surveillances of prestressing forces for the same tendon or tendons in
a group indicates a trend of prestress loss such that the tendon
force(s) would be less than the minimum design prestress requirements
before the next inspection interval.
(C) When the elongation corresponding to a specific load (adjusted
for effective wires or strands) during retensioning of tendons differs
by more than 10 percent from that recorded during the last measurement,
an evaluation must be performed to determine whether the difference is
related to wire failures or slip of wires in anchorages. A difference
of more than 10 percent must be identified in the ISI Summary Report.
(D) The licensee shall identify the following conditions, if they
occur, in the ISI Summary Report:
(1) The sampled sheathing filler grease contains chemically
combined water exceeding 10 percent by weight or the presence of free
water;
(2) The absolute difference between the amount removed and the
amount replaced may not exceed 10 percent of the tendon net duct
volume.
(3) Grease leakage is detected during general visual examination of
the containment surface.
(E) The licensee shall evaluate the acceptability of inaccessible
areas when conditions exist in accessible areas that could indicate the
presence of or result in degradation to such inaccessible areas. For
each inaccessible area identified, the licensee shall provide the
following in the ISI Summary Report:
(1) A description of the type and estimated extent of degradation,
and the conditions that led to the degradation;
(2) An evaluation of each area, and the result of the evaluation,
and;
(3) A description of necessary corrective actions.
(x) Subsection IWE and Subsection IWL inservice inspection plans.
Licensees that have less than 2 years remaining in their present 120-
month inservice inspection interval on (effective date of the final
rule) may defer completion of the Subsection IWE and Subsection IWL
portions of the inspection plan for the next 120-month inspection
interval for up to 2 years from the end of the present interval.
* * * * *
(g)* * *
(4) Throughout the service life of a boiling or pressurized water-
cooled nuclear power facility, components (including supports) which
are classified as ASME Code Class 1, Class 2, and Class 3 must meet the
requirements, except design and access provisions and preservice
examination requirements, set forth in Section XI of editions of the
ASME Boiler and Pressure Vessel Code and Addenda that become effective
subsequent to editions specified in paragraphs (g)(2) and (g)(3) of
this section and are incorporated by reference in paragraph (b) of this
section, to the extent practical within the limitations of design,
geometry and materials of construction of the components. Components
which are classified as Class MC pressure retaining components and
their integral attachments, and components which are classified as
Class CC pressure retaining components and their integral attachments
must meet the requirements, except design and access provisions and
preservice examination requirements, set forth in Section XI of the
ASME Boiler and Pressure Vessel Code and Addenda that are incorporated
by reference in paragraph (b), subject to the limitation listed in
paragraph (b)(2)(vi) and the modifications listed in paragraphs
(b)(2)(ix) and (b)(2)(x) of this section, to the extent practical
within the limitations of design, geometry and materials of
construction of the components.
* * * * *
(v) For a boiling or pressurized water-cooled nuclear power
facility whose construction permit was issued after January 1, 1956:
(A) Metal containment pressure retaining components and their
integral attachments must meet the inservice inspection, repair, and
replacement requirements applicable to components which are classified
as ASME Code Class MC;
(B) Metallic shell and penetration liners which are pressure
retaining components and their integral attachments in concrete
containments must meet the inservice inspection, repair, and
replacement requirements applicable to components which are classified
as ASME Code Class CC; and
(C) Concrete containment pressure retaining components and their
integral attachments, and the post-tensioning systems of concrete
containments must meet the inservice inspection and repair requirements
applicable to components which are classified as ASME Code Class CC.
* * * * *
(6)* * *
(ii)* * *
(B) Expedited examination of containment.
(1) Licensees of all operating nuclear power plants shall implement
the examinations specified for the first inspection interval in
Subsection IWE and Subsection IWL of the 1992 Edition with the 1992
Addenda in conjunction with the modifications specified in Sec. 50.55a
(b)(2)(ix) by (a date will be inserted that is 5 years later than the
effective date of the final rule).
(2) The expedited examination may be used to satisfy the
requirements of routinely scheduled examinations of Subsection IWE
subject to IWA-2430(c) when the expedited examination occurs during the
first containment inspection interval.
(3) The requirement for the expedited examination of the
containment post-tensioning system may be satisfied by written
commitments that are in place before (the effective date of the final
rule) for examinations of the post-tensioning system.
* * * * *
Dated at Rockville, Maryland, this 3d day of January 1994.
For the Nuclear Regulatory Commission.
Samuel J. Chilk,
Secretary of the Commission.
[FR Doc. 94-341 Filed 1-6-94; 8:45 am]
BILLING CODE 7590-01-P
Complete official Federal Register PDF
FR Doc. 94-322 Corporation Grant Programs and Support and Investment Activities
[Federal Register Volume 59, Number 5 (Friday, January 7, 1994)]
[Proposed Rules]
[Pages 1194-1236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-322]
[[Page Unknown]]
[Federal Register: January 7, 1994]
_______________________________________________________________________
Part III
_______________________________________________________________________
Corporation for National and Community Service
_______________________________________________________________________
45 CFR Part 2510, et al.
Corporation Grant Programs and Support and Investment Activities;
Proposed Rule
CORPORATION FOR NATIONAL AND COMMUNITY SERVICE
45 CFR Parts 2510, 2513, 2515, 2516, 2517, 2518, 2519, 2520, 2521,
2522, 2523, 2524, 2530, 2531, 2532, 2533, and 2540
Corporation Grant Programs and Support and Investment Activities
AGENCY: Corporation for National and Community Service.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Corporation for National and Community Service (the
Corporation) is issuing this rule concerning the Corporation's
grantmaking programs and various support and investment activities as
authorized by the National and Community Service Act of 1990, as
amended by the National and Community Service Trust Act of 1993 (the
Act). The activities and grants described in this rule are designed to
help address the Nation's human, educational, environmental, and public
safety needs through national and community service. This rulemaking
describes the different types of national and community service
programs the Corporation may support, funding available for those
programs, processes by which grants will be awarded, training and
technical support services available for program development and
applications, and Corporation plans to invest in service
infrastructure.
DATES: Comments on the proposed rule, as well as the draft
applications, must be received no later than February 7, 1994.
ADDRESSES: Comments may be mailed to the Corporation for National and
Community Service, P.O. Box 34680, Washington, DC 20043-4680. Comments
received may also be inspected at the Corporation for National and
Community Service, Office of the General Counsel, Room 9200, 1100
Vermont Avenue, Washington, DC 20525, between 9 a.m. and 5 p.m.
The Corporation also will make available copies of drafts of
applications for programs described in these regulations. These
applications may be obtained by writing to the above address.
FOR FURTHER INFORMATION CONTACT: Terry Russell, (202) 606-4949 (Voice)
or (202) 606-5256 (TDD), between the hours of 9 a.m. and 6 p.m. Eastern
Standard Time. For individuals with disabilities, information will be
made available in alternative formats, upon request.
SUPPLEMENTARY INFORMATION: The Supplementary Information section
explains the basis and purpose of the proposed regulations--providing a
context for understanding the policy decisions that underly them--and
provides information on the Corporation's plans for fiscal year 1994.
This Supplementary Information section should not be viewed as
comprehensive. Congress made numerous policy decisions that went into
the writing of the Act. These decisions, along with minor decisions
made by the Corporation in interpreting the Act, are not discussed.
Invitation to Comment
Regulations
The Corporation invites written comments on the text of the
proposed regulations and requests that the comments identify the
specific regulatory provisions to which they relate. However, comments
on the Supplementary Information section should focus on policy issues
rather than specific language or construction.
Applications
Interested parties may obtain copies of drafts of the various grant
applications from the Corporation as they become available. These
applications will be in draft form, however, and should not be used to
apply for funds. The forms are being reviewed by the Office of
Management and Budget. We estimate that, on average, it will take
approximately ten hours to fill out each of the forms. Any comments on
the forms should be sent as soon as possible to the Corporation at the
above address, as well as to the U.S. Office of Management and Budget,
Attention: Steve Semenuk, New Executive Office Building, room 3001,
Washington, DC 20503.
The Corporation's Mission and the Purpose of This Rule
Overall Mission
The Corporation's mission is to engage Americans of all ages and
backgrounds in community-based service. This service will address the
Nation's educational, public safety, human, and environmental needs to
achieve direct and demonstrable results. In doing so, the Corporation
will foster civic responsibility, strengthen the ties that bind us
together as a people, and provide educational opportunity for those who
make a substantial commitment to service.
Purpose of this Rule
The purpose of this rule is to establish policies and procedures
for the activities the Corporation will undertake to achieve the goals
described above. This rule should serve as a guide to explain the
eligibility requirements, application processes, selection criteria,
program requirements, and other relevant information for individuals,
programs, public and private nonprofits, institutions of higher
education, States, Indian tribes, and other entities wishing to
participate.
Impact of Programs
All programs under the National and Community Service Act have in
common the goal of achieving three types of impact: ``getting things
done,'' improving the lives of participants, and strengthening the ties
that bind communities together. All programs, whether they involve
elementary school children or senior citizens, are equally able to
achieve the last ``community-building'' impact--by involving people of
different backgrounds together in a common effort, by promoting civic
responsibility so that every member of a community feels responsibility
for its stewardship, and by breaking down barriers of mistrust and
misunderstanding. The other two impacts are weighted differently for
different program types based on the age and experience of the
participants.
At the one extreme, the service-learning programs for school-age
youth may indeed help to solve the pressing problems of communities,
but their primary impact will be and should be on the lives of the
participants. They should improve their educational motivation and
achievement, citizenship skills, teamwork, and problem solving
abilities. At the other extreme, for a professional corps of adults who
are highly educated and highly skilled, the primary impact must be on
getting things done in communities, with the receipt of an educational
award for loan repayment as the main participant impact. Given the
higher costs of these programs and the advanced education level of the
participants, it is imperative that the work they do be highly valued
by communities and the Nation. Programs like youth corps, which lie
somewhere in the middle in terms of age and education level of
participants, should achieve a balance of impacts. By keeping this
calculus in mind, potential applicants can appropriately gauge the
amount of program resources that should be dedicated to participant
education, life skills training, and other types of participant
support.
STATE PLAN ISSUES
(1) General Purpose
Section 178(e) of the Act requires every State Commission to
prepare a national service plan (the ``State Plan'') for submission to
the Corporation for approval. The law requires that the State Plan (a)
be developed through an open and public process that ensures outreach
to diverse community-based agencies that serve underrepresented
populations, and (b) cover a three year period and be updated annually.
With the exception of section 122(c) of the Act, which requires each
State to establish State-based priorities through the State Plan, the
law is silent as to the overall purpose and content of the plan itself.
In part 2513 of this rule, the Corporation has clarified the
purpose of the State Plan, indicating the information it must contain
and the criteria by which it will be evaluated. In general, the
Corporation intends for the State Plan to be an essential component of
a State's overall application; it should indicate a State's strategy
for supporting national and community service activities--including
proposed programs and other volunteer activities--within the State. The
State Plan is intended to bring diverse constituencies within the State
together for the purpose of promoting and supporting national and
community service, and it will be a factor in the Corporation's
evaluation of State applications.
(2) Development of the State Plan
The State Plan should be developed through an open, public and
inclusive process (such as through regional forums, hearings, or other
means) that provides for maximum participation and input from national
and community service programs within the State and other interested
individuals, including representatives of the private sector,
organizations involved in meeting educational, public safety, human,
and environmental needs, community-based organizations, and
constituencies that might not otherwise be formally involved with
national and community service programs. The State Plan should also be
developed in a non-partisan, non-political manner.
(3) Required Components
Section 2513.30 of this rule details the required components of the
State Plan. The following information is provided as supplemental
information on three aspects of the Plan:
(a) Overview of State experience and ``historical context'' for
service programming. The State Plan, especially in the first year,
should provide a context for understanding the development of national
and community service activities within the State, including the extent
to which the State has been involved in the development or support of
such activities. It should also provide an overview of the broad array
of organized service activities within the State, including, to the
extent practicable, activities not funded by the Corporation. The
primary goal for this section is to gain a ``snapshot'' of service
within the State, and to determine the extent to which States have an
established infrastructure to support high quality national and
community service programs, including the capacity to provide technical
assistance to prospective applicants and funded programs. In this
regard, the Plan will provide a baseline against which the Corporation
may assess future progress and activities.
(b) Establishment of goals and priorities. This section of the plan
should detail the goals and strategies identified by the State to
achieve the purposes of the Plan set forth above. In addition, any
State priorities that will govern the programs proposed for support
with formula funding should be clearly identified and explained,
including if appropriate a description of why the priorities were
established and how they relate to the national priorities established
by the Corporation.
(c) Description of process. The State Plan must specifically
describe the manner in which the State has conducted an open and
inclusive process to develop the State Plan and the priorities.
(4) Evaluation Criteria
The State Plan will be evaluated on two principal criteria: quality
and sustainability. These criteria are described in part 2513.40. In
addition, the quality of the State Plan itself will also be factored
into the Corporations overall evaluation of a State Commission's
application. Specifically, the submission of a State Plan that meets
the quality criteria established by the Corporation is an eligibility
requirement for States seeking formula funding under the national and
community service grant program. The quality of the State Plan will
also be factored into the Corporation's selection of programs for
competitive State funding. Finally, the Corporation may consider the
quality of the State Plan in determining whether to renew State
Commission administrative support under part 2550 of this rule.
SERVICE-LEARNING ISSUES
The K-12 service-learning programs--i.e., the school- and
community-based programs described in parts 2516 and 2517 of this
rule--as well as the Higher Education service-learning programs
described in part 2519 of this rule, aim to engage school-age youth and
students of all ages in activities to help meet the educational, public
safety, human, and environmental needs of America's communities.
Service-learning programs provide participants with structured,
sometimes curriculum-based opportunities to reflect on and learn from
their service experiences, often enhancing their academic skills, their
sense of civic responsibility, their ability to solve community
problems, and their understanding of important concepts such as
community, diversity, and citizenship.
In similar ways, the higher education programs strive to develop
the academic and civic skills of students by supporting efforts of
colleges and universities to help meet community needs.
(A) K-12 SERVICE-LEARNING ISSUES
(1) Coordination With State Plans
Any State or grantmaking entity that applies for school-or
community-based K-12 service-learning support must coordinate its
service-learning activities with the development of the comprehensive
State Plan described in part 2513 of this rule. This requirement is
designed to facilitate the integration of K-12 service-learning
programs into the overall national service efforts of each State.
The Corporation will consider the extent and quality of
coordination with the development of the State Plan in assessing the
merits of applications submitted by States or grantmaking entities.
However, because State Plans will be in different stages of
development, any applicant that makes a good faith effort at
coordination will not be disadvantaged in the selection process.
(2) Terms of Grants
The Corporation has set the maximum term of most grants at three
years, subject to satisfactory performance and annual appropriations.
In addition to facilitating coordination with the State Plan, the three
year term (a) allows programs to evolve and improve over time, learning
from mistakes and making adjustments to ensure quality, and (b) allows
the Corporation to track and learn from the development of programs
over time.
A one-year term will be set for planning grants made to school-
based program applicants, as well as grants to local partnerships
States not participating. This policy reflects the purpose of a
planning grant: to move programs from a sound program concept to the
brink of implementing a fully operational program. These grants thus
should be used for such activities as seeking community input, building
partnerships, developing curricula and materials, recruiting staff,
etc.
(3) Treatment of ACTION Student Community Service Program and
Commission on National and Community Service Grantees
High quality programs that received ACTION Student Community or
Commission funds are encouraged to seek Corporation grants.
(4) Stipends
The Act prohibits using school-based service-learning funds to
provide stipends to participants. With this rule, the Corporation
extends this restriction to Corporation funds awarded to community-
based service-learning programs in order to conserve and focus the
relatively small amount of funds available for community-based
programs.
(B) HIGHER EDUCATION SERVICE-LEARNING ISSUES
(1) Coordination With State Commissions
The Act is silent on the extent to which Higher Education service-
learning programs should be coordinated with State Commissions. In
considering this issue, the Corporation sought to balance (1) a desire
to promote coordination among national and community service programs
within each State, with (2) the concerns that programs not be unduly
burdened with bureaucratic procedures and that the Corporation, as the
direct funder of Higher Education service-learning programs, retain
control of selection, monitoring, and evaluation.
As a result, in fiscal year 1994 the Corporation is requiring an
assurance that, prior to submitting a Higher Education service-learning
application, applicants will send one copy of the final proposal to the
State Commission in each State where the program will operate. The
State will have no part in selecting programs to be funded. However, as
stated in the selection criteria of the application, evidence of
support from a State Commission or consistency with a State
comprehensive plan may improve the competitiveness of a program in the
review process.
(2) Educational Awards
Section 119(f) of the Act states that ``a participant in a program
funded under this part shall be eligible for the national service
educational award if the participant served in an approved national
service position.'' However, the Act provides no guidance on what kinds
of Higher Education service-learning programs involve participants in
positions eligible to be approved AmeriCorps positions.
Since institutions of higher education are eligible to apply for
AmeriCorps program support, campus-based programs fitting one or more
of the AmeriCorps program types described in Sec. 2522.110 should apply
as AmeriCorps programs rather than as Higher Education service-learning
programs. This reflects the idea that Higher Education service-learning
programs should have a distinctive service-learning emphasis; it was
not intended to be a grant program that merely supplements the
AmeriCorps funds.
The Corporation examined whether certain other types of positions
in a Higher Education service-learning programs should be provided
AmeriCorps educational awards. In Sec. 2519.320 of this rule, the
Corporation retains flexibility on this issue. In the fiscal year 1994
application, the Corporation expects to provide AmeriCorps educational
awards only to programs with positions designed to increase
participation in community service on campus, to develop projects and
partnerships in the community, or to facilitate service-learning in
campus-based programs. They are similar to other AmeriCorps positions
such as service-learning coordinators for school-based service-learning
programs or crew leaders in youth corps. Positions of this type are
essential for the longevity and progress of the service movement.
Any Higher Education service-learning program whose participants
receive educational awards must meet the minimum AmeriCorps program
requirements described in Section 2522.100 of this rule. As Higher
Education service-learning programs, however, they will be reviewed
according to selection criteria and priorities that apply to all Higher
Education service-learning applicants.
(3) Treatment of Existing Grantees of the ACTION Student Community
Service Program and the Commission on National and Community Service
ACTION and Commission grantees may seek funds to continue and build
on activities carried out under their current grants. In the fiscal
year 1994 application, the Corporation requires these grantees to
submit an application that will be reviewed on a competitive basis
according to the selection criteria applicable to all Higher Education
service-learning applicants. However, the Corporation will give
preference to applicants that offer evidence of positive performance
relative to stated objectives under their existing grants. This policy
is consistent with the Corporation's intent to select among all Higher
Education service-learning applicants on the basis of quality, while
giving existing grantees in good standing sufficient opportunity to
develop and become self-sustaining.
Applicants for renewal funding are expected to reduce their
dependence on Federal funds and to demonstrate clearly their potential
for sustainability, in accordance with the guidelines in the
application.
(4) Priorities
This rule gives priority to proposals that (among other
characteristics) demonstrate the commitment of the higher education
institution as a whole and specify how grant funds will be used to
strengthen the capacity of institutions of higher education to support
service.
The Corporation aims to fund programs supported not only by
students but also by the college or university presidents, faculty
members, and even trustees. An institutional commitment, beginning with
the institution's top leadership, enhances program quality and
sustainability by making resources from diverse areas of the
institution available to the program, by ensuring continuity of the
program as students come and go, and by signaling to the community that
the institution views the program as an integral part of--not an ``add-
on'' to--its core functions.
Moreover, as colleges and universities across the Nation develop
more model programs, the Corporation aims to fund efforts to link
individual initiatives within a campus or across several campuses in
supportive networks that facilitate replication of effective models,
delivery of training and technical assistance, access to information
and resources, development and dissemination of materials, and
evaluation of impacts. These activities, which build the capacity of
higher education institutions to improve the quality of community
service and service-learning programs, require strong infrastructures
within and across institutions.
AMERICORPS PROGRAM ISSUES
Section I: Programmatic Issues
(A) Overview and Purpose of Grant Program: ``Getting Things Done''
AmeriCorps is about getting things done. It will engage the energy
and idealism of the American people, especially young people, in
addressing the most critical educational, public safety, human, and
environmental needs of our communities. It will strengthen communities
and the civic character of our people through service, and reward those
who answer the call to service with enhanced educational opportunity.
The purpose of the AmeriCorps grant program, therefore, is to support
locally driven programs that meet rigorous national standards. This
strategy will enable communities across the Nation to channel the
unique talents and creativity of America toward effectively addressing
these most important needs. For these efforts to be successful,
however, it is essential to ensure that they provide direct and
demonstrable benefits that are valued by communities.
To achieve this outcome, the Corporation has attempted through
these regulations to provide clear guidance to programs seeking
assistance under the grant program. First, the regulations clarify the
nature of service activities eligible for support under the Act.
Second, to enhance the collective impact that all programs will have
within the four broad issue areas specified by law, the Corporation has
also exercised its authority to establish national priorities. Third,
to ensure that each of the diverse programs supported through the grant
program is of the highest possible quality, the Corporation has also
specified minimum program requirements that all programs must address.
And finally, the Corporation has clarified issues pertaining to
participant eligibility and benefits.
(B) Eligible Service Activities
(1) Description of Eligible Service Activities
There are numerous pressing needs throughout our communities that
may be appropriately addressed by AmeriCorps programs. But given the
realities of limited resources and the extent to which other public,
private and non-profit responses to many of these needs already exist,
it is important that an AmeriCorps program undertake activities that
are appropriate to the program's overall mission and capacity and that
achieve the greatest positive impact possible. To this end, the
Corporation has provided a framework for eligible service activities
that builds on the parameters specified in the law.
The Corporation's proposed regulation (as set forth in part 2520)
limits service to activities that provide a direct benefit to the
community where they are performed or that involve the supervision of
participants or volunteers whose service provides a direct benefit to
the community where it is performed. The Corporation determined, based
upon the inclusion in the Act of several program types involving such
supervision, such as service-learning coordinator programs, that
Congress intended for supervision of participants or others performing
service to be included as an eligible service activity, provided that
the service of those supervised would itself qualify.
In determining whether service ``provides a direct benefit to the
community where it is performed,'' the Corporation will take into
consideration several factors, including whether the service must be
performed physically in the community to be effective and whether the
service brings participants face-to-face with residents of the
community served or in contact with the physical environment that is
the ``beneficiary'' of the service. Direct service includes physical
projects like renovating low-income housing or creating a playground in
a vacant lot, as well as less tangible projects like tutoring,
mentoring and conflict resolution.
To further define what constitutes a ``direct benefit,'' the
Corporation's proposed regulation offers several examples of activities
that would not meet this test: fundraising, clerical work, and
research. This list is not intended to be limiting; other activities
may also fail the ``direct benefit'' test. However, if an activity does
not provide a direct benefit, it is not necessarily altogether
prohibited. Rather, unless it falls into one of the ``prohibited''
categories discussed below, the activity may be performed if it is
incidental to the direct service. For example, a team whose project
involves providing meals, transportation, and health services to the
homebound might conduct a door to door survey of community residents to
help locate those in need of services; if they then went on to provide
those services, this kind of research would be an appropriate activity
for the team.
(2) Prohibited Activities
Prohibited activities (specified in Sec. 2520.30) may not be
performed by participants in the course of their duties, at the request
of program staff, or in a manner that would associate the activities
with the AmeriCorps program or the Corporation. These activities
include: influencing legislation, as defined in the section of the IRS
code relating to non-profit organizations; organizing protests,
petitions, boycotts, or strikes; assisting, promoting or deterring
union organizing; participating in partisan political activities; and
performing religious activities, such as conducting worship services or
engaging in religious proselytization. Of course, participants may
engage in any of these activities at their own initiative, on their own
time, and in a manner that is not associated with their participation
in the program.
(3) General Guidance
In all cases, service activities must result in a specific
identifiable service or improvement that otherwise would not be
provided with existing funds or volunteers and that does not duplicate
the routine functions of workers or displace paid employees. Further,
service opportunities should be appropriate to the skill levels of
participants, and they should provide a long-lasting, identifiable, and
demonstrable benefit that is valued by the community.
While the Corporation reserves the right to further restrict
eligible service, it has not done so because it recognizes that the
character of service often depends on its content and context. For
example, distributing leaflets may provide a ``direct benefit'' if the
leaflets inform readers about the availability of free immunizations or
how to conserve energy in the home. Conversely, distributing leaflets
supporting a political candidate, or urge individuals to write their
legislators about an issue, would be prohibited. Given the great
educational, public safety, human, and environmental needs of our
communities, it should not be difficult for programs to identify
projects that clearly provide a direct benefit.
(C) Establishment of State and National Priorities
(1) State Priorities
As discussed earlier, States must establish and, through the State
planning process, periodically alter priorities in the areas of
educational, public safety, human, and environmental needs. These
priorities apply to programs that receive assistance (funding or
AmeriCorps educational awards) provided on a formula basis as described
in Sec. 2521.30(a)(1). The State priorities will be subject to
Corporation review as part of the AmeriCorps application process under
Subpart C of part 2522 of this rule.
(2) National Priorities
In order to concentrate national efforts on addressing certain
educational, public safety, human, and environmental needs, the
Corporation will establish and, after review of the strategic plan
approved by the Corporation's Board of Directors, periodically alter
priorities regarding the AmeriCorps programs that will receive
assistance (funding or AmeriCorps educational awards) and the purposes
for which such assistance may be used. These priorities apply to
assistance provided on a competitive basis as described in
Sec. 2521.30(a)(2) and (b)(3), and to any assistance provided through a
subgrant of such funds.
(a) National Priorities for Fiscal Year 1994. For fiscal year 1994,
the Corporation has established the following national priorities
within each of the four broad issue areas:
(i) Education. (A) School Readiness: Furthering early childhood
development; and
(B) School Success: Improving the educational achievement of
school-age children.
(ii) Public safety. (A) Crime Prevention: Reducing the incidence of
violence; and
(B) Crime Control: Improving criminal justice services, law
enforcement, and victim services.
(iii) Human needs. (A) Health: Providing independent living
assistance and home-and community-based health care; and
(B) Home: Rebuilding neighborhoods and helping people who are
homeless.
(iv) Environment. (A) Neighborhood Environment: Reducing community
environmental hazards; and
(B) Natural Environment: Conserving, restoring, and sustaining
natural habitats.
(b) Application of Priorities to Programs. The National priorities
established by the Corporation apply to programs seeking State
competitive and national direct grants from the Corporation, as
specified in Sec. 2521.30 of this rule. Programs included in the State
formula application are not governed by these priorities, but rather by
priorities established by the State consistent with part 2513 of this
rule. A more thorough description of how these National priorities will
affect program selection in each of the major grant areas is described
in Section II, Subsection B, Number 3 of this Supplementary Information
section, below.
(D) Minimum Program Requirements To Ensure Quality
In an effort to ensure that all programs supported by the
Corporation are high quality, the Corporation has specified a number of
minimum requirements (in addition to those already provided in the law)
that all programs must satisfy. These provisions, specified in
Sec. 2522.100 of this rule, seek not only to enhance the quality of
individual programs, but to further the ability of each program to
contribute to the achievement of the overall goals and purposes of
AmeriCorps as set forth by the Corporation.
Because the minimum program requirements represent elements
essential to the success of any AmeriCorps program, every program
receiving assistance from the Corporation through part 2522 of this
rule is required to address each requirement. The following sections
discuss the most salient of these requirements:
(1) Getting Things Done
First and foremost, every AmeriCorps program that receives funding
or AmeriCorps educational awards from the Corporation must address
educational, public safety, human, and environmental needs, and provide
a direct and demonstrable benefit that is valued by the community. This
requirement reflects the Corporation's intent to make efficient use of
limited funds--to have every grant made to an AmeriCorps program in
some way help to address our Nation's most pressing needs.
(2) Strengthening Communities
In addition to addressing the Nation's most pressing community
needs, the Corporation also seeks to strengthen the communities in
which we live through AmeriCorps programs. As social and economic
forces continually drive people apart, the need arises to promote
opportunities for diverse Americans to enjoy common experiences and
share common values that, in the words of the President, ``strengthen
the cords that bind us together as a people.'' Thus, the Corporation
has established the requirement that each program must seek ``to
strengthen communities and encourage mutual respect and cooperation
among citizens of different races, ethnicities, socioeconomic
backgrounds, educational levels, among both men and women and
individuals with disabilities.''
This requirement reinforces several of the Corporation's goals for
AmeriCorps. First, it affirms that a necessary ingredient of active,
productive citizenship is the ability of diverse citizens to live and
work together, notwithstanding differences in race, class, gender,
physical or mental ability, etc. Second, the requirement supports the
objective of strengthening not just individual relationships among
people, but the collective relationships among all Americans as
expressed in the spirit of community and in citizens' sense of personal
responsibility to that community. Third, it acknowledges that diversity
within programs can be an effective resource for community problem-
solving. Finally, the requirement supports a number of legislative
objectives and requirements found within the Act.
For example, an initial finding of the statute is that ``Americans
desire to affirm common responsibilities and shared values, and join
together in positive experiences, that transcend race, religion,
gender, age, disability, region, income, and education.'' Furthermore,
section 179 of the Act instructs the Corporation to evaluate programs
based on their effectiveness in ``recruiting and enrolling diverse
participants * * * based on economic background, race, ethnicity, age,
marital status, education levels, and disability.'' These legislative
provisions thus reinforce the Corporation's objective.
One way in which this important objective may be accomplished is to
involve diverse participants in programs. Therefore, the Corporation
requires each program to seek actively to engage participants from
diverse backgrounds in AmeriCorps, including individuals from the
community served. It also recognizes that in practice, it is not always
possible (or in some cases desirable) for this objective to be realized
in every case. Specifically, the Corporation recognizes two instances
in which programs may lack diversity in one or more ways:
First, despite its best efforts, a program simply may be unable to
recruit the participants necessary to achieve diversity in some
respect. In recognition of this the Corporation requires that programs
``seek to achieve'' rather than ``ensure'' diversity. However, programs
will be required to specify the specific strategy or activities to be
undertaken to recruit participants in accordance with this provision.
Second, some programs may have legitimate, substantive or
philosophical reasons to involve individuals who share a particular
characteristic. Examples of such programs include, but are not limited
to the following: (1) A youth corps or other program might be designed
to impart specific job skills and provide basic education through
service-learning and thus might lack educational or economic diversity
by design; (2) a professional corps that requires participants to
possess specific post-secondary training necessarily would lack
educational diversity.
Although such programs would thus lack diversity in one or more of
the required aspects, they nevertheless must strive for diversity in
other areas. For instance, a professional corps enlisting participants
of a common educational background would still be required to seek to
include a racially and ethnically diverse group of individuals,
individuals with disabilities, and both men and women. Equally
important, all programs should undertake activities that will provide
opportunities for citizens who might not otherwise serve, work or learn
together to do so, regardless of what the overall composition of the
program might be.
While the Corporation is committed to making AmeriCorps
opportunities available to Americans of all backgrounds, it will also
ensure, consistent with the Act, that at least 50 percent of
Corporation funds provided to States will go to programs that operate
in areas of greatest need and that place a priority on recruiting
participants who are residents in these high need areas (as specified
in Sec. 2521.30(a)(3)(iii) of this rule), or on Federal or other public
lands. The Corporation does not consider this requirement, which
affects the overall national composition of programs and participants,
at odds with its goals of encouraging the participation of citizens of
all backgrounds.
The Corporation recognizes that recruiting and retaining diverse
participants requires special efforts. This is particularly true for
qualified individuals with disabilities, including people with mental
disabilities . Because the Corporation intends to assist programs in
achieving the goal of diversity, the Corporation anticipates making
technical and other assistance available to programs to assist in the
attainment of recruitment goals. In addition to program development
assistance for strengthening recruitment or outreach components of
individual programs, the Corporation will make other resources
available to programs, including financial support for programs seeking
to involve qualified individuals with disabilities (as described in
Sec. 2524.50 of this rule), as well as referral information on
participants identified through the national recruiting system
described in Sec. 2522.210 of this rule and in section (E)(3), below.
(3) Participant Selection Requirements
Through this rule, the Corporation offers guidance to programs
regarding participant selection. First, the proposed regulation
encourages programs to select participants who possess leadership
potential and a commitment to the goals of the AmeriCorps program. This
guidance is not intended to discourage the enrollment of individuals
who have not attained educational or job success; rather, it
acknowledges that within every social strata, there are people who
possess leadership ability that has not been tapped or directed at
productive activities. Second, the regulation calls for programs to
select participants in a non-political, non-partisan, and non-
discriminatory manner. The third participant selection rule is found in
the Act itself--the requirement that programs establish minimum
qualifications for participants. Among other things, this provision
prohibits AmeriCorps participants from performing service that (1) is
or was recently performed by paid employees (2) would infringe upon the
promotional opportunities of paid employees (3) would supplant the
hiring of employees or (4) would reduce the hours, wages, or benefits
of paid employees.
Finally, although the Corporation expects that most programs will
involve young adults or recent college graduates as participants, the
regulations encourage programs to consider intergenerational approaches
because of the natural mentoring relationships that arise in these
programs. For example, a youth corps might involve seniors on each crew
or a corps of young attorneys might include retired lawyers
volunteering on a part-time basis.
In addition, the Corporation may require programs to establish pre-
service orientation and training periods for participants. The goal of
such periods would be to establish a common orientation process for all
programs and participants that would be tied to the efforts to create a
national identity. The Corporation might specify, for example, that the
official AmeriCorps logo may not be worn until participants have
satisfactorily completed the orientation period and have been
officially enrolled in the program through the administration of a
national oath. These efforts, among other things, may reduce
prospective attrition rates and contribute to a positive esprit de
corps across programs.
The statute also directs the Corporation to establish a national
leadership pool and a national system for the recruitment of
participants; States also must establish recruitment systems. National
and State recruitment will contribute to the diversity of the overall
participant pool by supplementing local recruitment with participants
from across the Nation and with participants who possess specialized
skills or training. The national and State recruitment efforts will
also facilitate the participation of individuals who desire to serve
but live in areas where there are few or no AmeriCorps programs
available. The Corporation may therefore require programs to select a
small percentage of participants from the national recruitment pool. In
addition, as specified in the application materials, the Corporation
may provide for the coverage of certain relocation expenses for a
limited number of participants who are recruited through the national
referral system. While the Corporation will not require programs to
select any participants through the national system in fiscal year
1994, programs are strongly encouraged to do so.
(4) AmeriCorps Identification
In addition to those activities noted in paragraph (3) above, the
Corporation will also require programs to agree to identify themselves
as part of a larger national effort and to participate in such
AmeriCorps activities as the Corporation may specify. Examples might
include the use of a national logo or common application and
informational materials as well as participation in special activities
such as a national service day, a conference or common training, or the
use of a common orientation component. This provision would not
preclude an AmeriCorps program from developing its own training or
materials, or from using its own name as the primary identification for
the program. These efforts not only will enhance the visibility of the
AmeriCorps programs but will contribute to a national recognition of
the value and importance of the work being undertaken by the programs.
(5) Promoting Active, Productive Citizenship
In addition to ``Getting Things Done'' in communities throughout
the Nation, another central goal for all AmeriCorps programs is to
promote active, productive citizenship on the part of all participants,
which may include fostering a sense of personal responsibility and a
life-long ethic of service. To this end, programs are encouraged to
design projects that employ service-learning methods to enhance
participants understanding of the relationship between the activities
undertaken to address needs and the larger social context in which the
efforts are made. In addition, programs must provide participants with
appropriate training and support to carry out assignments, including
background information on the community in which the service will be
performed and on why the particular project is needed. Finally, because
AmeriCorps programs seek to promote active citizenship, and because
voting is a critical component of citizenship in any democracy, every
program must encourage, in a non-partisan manner, each participant
eligible to do so to register to vote.
(6) Start of Operations
To further the goal of creating a national identity for programs,
this rule requires all programs to agree to begin operations at such
times as the Corporation may reasonably require. Creating ``classes''
of participants who all begin and ``graduate'' from their terms of
service during the same time period will foster a greater sense of
national identity. The Corporation's current policy requires
participants to begin service in June, September, or January. The
Corporation may waive this requirement for programs that can
demonstrate compelling reasons for alternative starting dates.
This requirement should also contribute toward the achievement of
other programmatic goals. For example, common schedules and operating
timelines will enable the Corporation to support, where appropriate,
staff and participant training. In addition, this provision will enable
many programs' term of service to track the traditional school year,
making the recruitment of college and college-bound participants
easier. For example, a program that begins in January and ends in
October would require participants to miss two years of school, whereas
a program that begins in September and ends in June would only require
participants to miss one year of school.
In addition, this rule states that programs must agree to comply
with any policy the Corporation may implement regarding filling
approved AmeriCorps positions left vacant by attrition. The Corporation
is currently considering a policy which would allow programs to fill
such vacant positions only within the first month of the enrollment of
a given class of participants. The Corporation encourages interested
parties to comment on this proposed policy. This provision is aimed at
providing a sense of cohesion within each AmeriCorps program.
Experience shows, especially in team- or crew-based programs, that the
process of continually filling positions left vacant by attrition tends
to erode the sense of teamwork and identity among participants and can
interrupt an efficient flow of operations, thereby affecting the
quality of service provided in the community. Through this provision,
the Corporation would require programs to wait until the next approved
intake period before enrolling additional participants.
(7) Allocation of Educational Awards Within Programs
Because of the limited amount of funding available for program
assistance, the Corporation anticipates that in some cases programs
(especially existing programs) may not apply for or receive adequate
support for all participants enrolled in the program, and the potential
may thus arise for some participants (who are serving in approved
AmeriCorps positions) to receive AmeriCorps educational awards while
others do not. The Corporation is therefore requiring every applicant
to describe the rationale for its distribution of educational awards to
program participants in those cases where distinctions among
participants are necessary. In general, this distribution should treat
equally all participants doing the same or essentially similar work.
This reflects a matter of principle as well as a pragmatic concern for
the equal treatment of participants within a single program.
The Corporation recognizes that equal treatment may not be feasible
or desirable in some instances. For example, an intergenerational
program or a program with a specialized component or division assigned
special projects may make distinctions among participants that justify
the provision of educational awards to some but not to others.
Similarly, a program may choose to offer alternative post-service
benefits to participants in lieu of the AmeriCorps educational awards
provided by the Corporation. AmeriCorps programs are strongly
encouraged to offer alternative post-service benefits to participants
who will not receive AmeriCorps educational awards. The Corporation
will evaluate on a case-by-case basis the rationales of programs that
do not plan to provide all participants with educational awards.
However, the Corporation anticipates that it will not approve
rationales based solely on a determination of economic need of
participants.
(8) Evaluation Requirements
In order to ensure that only high quality programs continue to
receive Corporation support, AmeriCorps programs must perform
continuous monitoring and evaluation. The provisions of this rule
emphasize the importance of monitoring and evaluation at all levels--by
individual programs, States or grantmaking entities, and the
Corporation.
This rule allows programs to conduct internal rather than
independent evaluations. The Corporation will conduct independent
evaluations at the national level because, due to economies of scale,
that is where they will be most cost-effective. Each program, State,
and grantmaking entity must collect data and cooperate fully in all of
the Corporation's monitoring and evaluation activities.
A key provision of the Corporation's evaluation strategy requires
all programs to set annual objectives in concert with the Corporation
and applicable grant-making entity. Programs will be required to track,
and report to the Corporation, progress towards these objectives.
Programs will be evaluated annually, in part, based on their success at
achieving their objectives.
Finally, this rule promotes continuous quality improvement and
provides examples of techniques available to programs.
(E) Program Types and Size
(1) Program Types
Section 2522.110 of this rule lists fourteen discrete types of
service programs that may qualify for AmeriCorps program funding. These
types, while sharing the goal of meeting our Nation's pressing needs,
differ in terms of which need is addressed, how the participants are
organized, the age and background of the participants, and the nature
of the sponsoring organization.
After careful and thorough consideration, the Corporation decided
not to include in the regulations any program types not listed in the
Act. This decision is not an attempt to restrict the types of eligible
AmeriCorps programs. On the contrary, it was specifically intended to
leave open-ended the types of programs that may be eligible.
The Act states that the Corporation may designate other AmeriCorps
types aside from those listed to qualify for AmeriCorps grants. The
Corporation decided that instead of attempting to list additional types
of programs, it would interpret this provision broadly, allowing for
the eligibility of any program type that meets the criteria applicable
to all programs.
The fourteen program types listed are clearly eligible for support,
and they may serve as guidelines for developing programs. However,
programs that meet the Corporation's eligibility and quality criteria
but that do not fit one of these types will not be disadvantaged in the
selection process. Conversely, because the Corporation wishes to fund
the highest quality programs that meet the Nation's most pressing
needs, the Corporation will not give priority to a program simply
because it fits the description of one of the listed program types.
Finally, any organization considering applying should determine
whether they are more appropriately a project sponsor than a program. A
program is responsible for recruiting, selecting, and training
participants, providing them benefits and support services, engaging
them in regular group activities, and placing them in projects. While
the program may also serve as the project sponsor by supervising the
day-to-day service of participants, the program may instead place
participants in projects overseen by another organization.
For example, a local police department could apply for funds to run
a community policing support program. It would recruit and select
participants, train them, and supervise them in a variety of projects.
In this case, the police department would be both the program and the
project sponsor. Alternatively, an organization that runs a program may
work in collaboration with one or more other organizations that will
serve as project sponsors. For example, a community-based organization
(CBO) may apply for funds to operate an early childhood development
corps. The CBO, as the program, would recruit and select participants,
provide them with specialized training in child development, and bring
them back together regularly for additional training and other
activities. The participants would be assigned individually or in small
groups to child care, Head Start, and preschool programs in the
community, which would serve as project sponsors.
In general, organizations who can engage productively no more than
four participants or that lack the capacity to perform the duties,
required of programs should consider becoming project sponsors. Such an
organization may form a partnership with another organization in the
community with a shared vision and mission that is interested in
becoming a program sponsor. Together, the organizations in the
partnership should be able to present a coherent program, including
common training and ongoing group activities, rather than a loosely
federated consortia with unrelated elements. Such an organization may
also contact the State Commission for information about funded programs
in the area that might place participants with the organization, or
contact the State ACTION office about the possibility of a VISTA being
assigned there.
(2) Minimum Program Size
It is extremely important for all programs, regardless of type, to
be large enough to achieve a demonstrable impact on the community
served. Thus, while the actual size of each program may vary depending
on the size of the community in which it operates, the design of the
program, and other factors, in general the Corporation encourages
programs to enroll at least twenty full-time equivalent participants,
regardless of whether participants are placed individually or in teams.
And while the Corporation will likely fund programs that exceed this
preferred minimum size, any applicant seeking support for a program
that does not intend to enroll at least twenty participants should
demonstrate why a smaller program is necessary or appropriate to a
specific circumstance.
This guideline should not only enhance the impact that programs
will have on a particular issue or within specific communities, but it
should also increase the ability of the Corporation and State
Commissions to ensure the delivery of high quality programming and
compliance with legislative and regulatory requirements. Accomplishing
these outcomes would be significantly more difficult with many small
groups of participants dispersed throughout a State or region.
It is important to note that this requirement relates to programs,
not to project sponsors. Thus, while programs should enroll at least
twenty participants, there is no minimum requirement for the number of
AmeriCorps participants which may be placed in an approved service site
or organization.
(F) Participant Eligibility and Benefits
(1) Terms of Service
Section 2522.220 specifies appropriate definitions and guidance
pertaining to terms of service. This rule clarifies that participants
shall receive benefits, including AmeriCorps educational awards, only
for their first two terms of service, regardless of whether those terms
of service are full-time, part-time, or a combination of both. It also
establishes that admission to a second or further term of service is
contingent upon successful completion and a positive performance review
of the first term. (Sec. 2522.220(c)(i) of this rule explains the
performance review.)
Participants and programs have substantial latitude in mixing
different types of terms of service. For example, a high school
graduate could participate full-time in a youth corps for one year, use
his or her educational award to pay for two years of community college,
participate in a part-time AmeriCorps program during college, and earn
another award to help pay the costs of attending a four-year
university. Alternatively, a participant could serve two consecutive
1\1/2\ year part-time terms of service while attending college; such a
participant would thus, in total, serve 1800 hours and earn two part-
time educational awards. A good example of this type of mixing of terms
of service would be a during-college program analogous to the Reserve
Officer Training Corps program, which engages participants in part-time
service during college, followed by a full-time placement after
graduation.
(2) Release from Terms of Service
Generally, participants can be released for two reasons: (i) they
want to be released due to compelling personal circumstances; or (ii)
they are released from the program for cause. In both cases, this rule
puts primary responsibility for determining when to release a
participant in the hands of the programs. Programs should be aware that
participants released due to compelling personal circumstances may
receive prorated educational awards whereas those released for cause
may not.
In addition, this rule requires programs to establish in writing
clear guidelines that establish the circumstances under which
participants will be released for cause. These documents must be signed
by the participant and by a representative of the program. The
Corporation encourages programs to establish attainable but high
standards for participant conduct. The Corporation requires programs to
release participants for cause if they are convicted of a felony. If
participants are charged with a violent felony or the sale or
distribution of a controlled substance, or if they are convicted of the
possession of a controlled substance, programs must suspend their
service without a living allowance and without receiving credit for
hours missed.
A participant who is wrongly released or suspended for cause will
receive credit for any service missed and reimbursement for missed
stipends. This rule further describes the conditions under which
participants whose service has been suspended may be reinstated, the
impact of release for cause, and the grievance procedure available to
participants. (See Sec. 2522.230)
(3) Living Allowances
In general, the Act requires that all programs receiving
Corporation assistance provide living allowances to full-time
participants. The amount of the living allowance must be at least the
average annual amount provided to VISTA volunteers (approximately
$7,440 for FY 1994 or about $4.40 per hour assuming a total of 1700
hours served) but not more than twice that amount. Of this, the
Corporation's share may not exceed 85% of the basic VISTA allowance (or
approximately $6,375). Programs must therefore provide a cash match for
their share of the stipend.
There are a number of exceptions to these requirements: a program
that was in existence prior to September 21, 1993, is by law exempt
from meeting the minimum stipend requirement; programs may, but are not
required to, provide living allowances to part-time participants; and
the Corporation may waive or reduce the minimum requirement at its
discretion (see Sec. 2522.240(b)(4) of this rule).
With this rule the Corporation also clarifies that the
Corporation's share will not exceed 85% of the living allowance,
regardless of whether the allowance has been reduced or prorated from
the minimum full-time allowance. Thus, if a program provides part-time
participants who serve 900 hours per year with an annualized stipend of
$3,960, the Corporations share would not exceed $3,366 (85% of the
part-time allowance).
Finally, the Corporation will pay no share of participant stipends
for a professional corps described in Sec. 2522.110(b)(3) that provides
stipends to participants in excess of the maximum allowance. However, a
program involving professionals that wishes to seek Corporation support
for participant stipends or benefits while not technically a
``professional corps'' may do so by applying under the general
provision (Sec. 2522.110(g)). Such a program would be subject to the
same restrictions on stipends as other AmeriCorps programs.
(4) Child Care
The Act requires that programs provide child care or a child care
allowance to any full-time participant who needs such assistance in
order to participate. The regulations define need based on three
factors: total family income of the participant must be less than 75
percent of the State median income; the participant must reside with
and be a parent or guardian of a child under the age of 13; and the
participant must not be receiving child care assistance from another
source at the time of acceptance into the program, unless the
participant would become ineligible for child care by virtue of
enrollment in the program. These requirements were selected to be
consistent with the Child Care and Development Block Grant Act of 1990,
the major program through which the Federal government provides child
care to low- and middle-income families. To ensure that funded care
meets minimum health and safety standards, the regulations also tie
eligible providers and the amount of the child care allowance to the
Child Care and Development Block Grant of 1990. In implementing this
provision, the Corporation expects to reserve program funds for child
care benefits. Programs are asked in their applications to indicate how
many participants they expect to require such benefits. This will help
the Corporation determine the amount of funds that should be reserved.
(5) Health Insurance
The legislation requires the provision of health care benefits to
full-time AmeriCorps participants who are not otherwise insured. The
regulations provide for the Corporation to establish a minimum benefits
package and to tie the amount of funding for health care policies to an
affordable policy that provides these minimum benefits. The Corporation
welcomes comments on the contents of the minimum benefits package. Any
program wishing to provide alternative benefits may do so with approval
from the Corporation, provided that the policy has a fair market value
equal to or greater than the minimum benefits package.
Section II: Available Grants and Distribution of Funds
(A) Types of Grants Available
Eligible applicants may apply for planning, operating, or
replication grants. Applicants seeking operating or replication grants
also may apply for AmeriCorps educational awards. In addition, an
applicant may seek AmeriCorps educational awards only.
(1) Planning Grants
The purpose of a planning grant is to bring a program to the verge
of implementation so that it may compete successfully for operating
assistance in the following grant cycle. The Corporation will make
planning grants available to eligible applicants that already have
identified a sound concept for an AmeriCorps program, but that require
resources in order to plan, develop, and prepare the program for
implementation. (In this sense, planning grants more accurately may be
called ``development grants.'')
For example, a planning grant might be appropriate for an applicant
that has already identified the type of program to be developed,
including key design elements such as the specific need(s) to be
addressed, types of projects to be conducted, and kinds of participants
to be recruited. The program might lack, however, a specific training
or education curriculum, or it might need to build additional community
partnerships to identify specific service projects and activities to be
conducted. It might also lack a specific staffing or recruitment plan
and materials, or it might need to raise additional matching funds.
Thus, while the specific elements of the program might require
developmental assistance, the program design is nevertheless clear
enough to enable the Corporation to evaluate fully the nature of the
program and the prospective activities that it will undertake
(including the expected impact it will have on a particular issue or
problem). While the average size of grants awarded for planning and
development will vary by circumstance and need, in general, grants will
range from $50,000 to $250,000, depending on the size of the
prospective full-time program, and may cover a period of between six
months and one year, depending on the expected timing of the next grant
cycle.
(2) Operating Grants
The purpose of an operating grant is to support an applicant that
is ready to implement a fully developed new or expanded program.
Operating grants may include a short planning phase to complete the
final stages of program development before implementation. The
Corporation may award operating grants for a term of up to three years,
with annual renewal funding subject to periodic assessment of program
quality, successful performance against stated objectives, and
availability of appropriations. In general, the size of an operating
grant will reflect the size and costs of the proposed program. However,
the Corporation anticipates making few operating grants in excess of $4
million. While there are no absolute limitations on the number of
AmeriCorps educational awards an applicant may seek, the Corporation
will apportion these positions in a manner consistent with the
reasonable needs of programs. Moreover, programs are encouraged to take
a cost-effective approach based on per-participant costs. The
Corporation also encourages new or start-up programs to start
relatively small (generally between 20 and 50 participants, depending
on the needs of the program) in order to ensure high quality operations
in the first year. For new programs proposing multi-State or multi-site
operations, the Corporation also encourages piloting efforts in a
limited number of communities or locations to ensure quality before
undertaking significant expansion.
(3) Replication Grants
The purpose of a replication grant is to support the replication to
other sites or programs of a program model or component that has a
track record of success, identifiable core elements that account for
its effectiveness, and sufficient adaptability to local circumstances.
In its first year, the Corporation will evaluate proposals for
replication against criteria similar to those that apply to operating
grants. In future years, the Corporation may establish criteria that
are specific to replication grants, including a requirement for
independent evaluation results demonstrating the quality and
effectiveness of the program seeking replication.
The terms and size of replication grants, as well as the allotment
of AmeriCorps educational awards, are the same as for operating grants
as described in paragraph 2 above.
(4) Educational Awards Only
For programs that have adequate resources to cover program costs
and that meet all the requirements for an AmeriCorps program set forth
in part 2522 of this rule, the Corporation may make grants consisting
only of AmeriCorps educational awards. This rule clarifies that these
grants may be made either to programs that do not apply for program
assistance or to programs that apply for but do not receive program
assistance (see Sec. 2521.30(c)).
These types of grants are integral to the overall success of
AmeriCorps: they are an efficient use of limited resources; and they
allow for the inclusion of high-quality programs that might otherwise
be excluded due to the supplantation rule (which states that
Corporation assistance cannot supplant State, local or private funds).
However, programs that receive this type of grant must be of at least
as high-quality as programs that receive program assistance.
(5) Other Assistance
(a) Program development, training and technical assistance. The
Corporation will make grants to provide program development, training,
and technical assistance to improve the quality of service projects,
assist in the recruitment of diverse participants, improve educational
or other materials, and for other purposes (see Sec. 2524.40 of this
rule; also see part 2532, which describes other grants available for
training and technical assistance).
(b) Challenge grants. Section 2524.40 of this rule allows the
Corporation to make challenge grants to programs already receiving
Corporation assistance. With these challenge grants the Corporation may
provide up to $1 in assistance for every dollar raised by a program in
excess of the matching funds required for its existing Corporation
grant. More details concerning the specifics of this program are
provided in Sec. 2524.40 of this rule.
The Corporation views the challenge grant program as an important
component of its efforts to support AmeriCorps. It allows the
Corporation to leverage funds and expand the scope and reach of the
highest-quality AmeriCorps programs. However, because programs
generally will not receive AmeriCorps program grants until three-
quarters of the way through the fiscal year, the Corporation
anticipates making only a limited number of challenge grants in fiscal
year 1994 .
(c) Grants for outreach to qualified individuals with disabilities.
The Act authorizes the Corporation to make grants:
(i) To assist AmeriCorps grantees in placing applicants who require
reasonable accommodation (as defined in Sec. 101(9) of the Americans
with Disabilities Act of 1990) (42 U.S.C. 12111(9)) or auxiliary aids
and services (as defined in section 3(1) of such Act) (42 U.S.C.
12102(1)) in an AmeriCorps program; and
(ii) To conduct outreach activities to qualified individuals with
mental or physical disabilities to recruit them for participation in
AmeriCorps programs.
(d) Disaster relief. With this rule, the Corporation has determined
that in light of limited resources for this grant program, disaster
relief grants will only be made available to enable national and
community service programs to respond quickly and effectively to a
Presidentially-declared disaster.
The Corporation has also clarified eligibility requirements by
specifying that any AmeriCorps program (including youth corps, the
National Civilian Community Corps, VISTA, and other programs authorized
under the Domestic Volunteer Services Act) or grant making entity (such
as a State or Federal agency) that is supported by the Corporation may
apply to the Corporation for disaster relief grants.
Finally, the Corporation has specified that due to the limited
duration of disaster relief activities, it may waive certain matching
or program requirements if appropriate.
(B) Distribution of AmeriCorps Funds and Educational Awards
(1) State Formula Allotment and Corresponding Educational Awards
The Act specifies that of amounts available for allocation under
the grant program, the Corporation will make one-third available to
eligible State applicants through a population-based formula. For
fiscal year 1994, the Corporation expects that $51,833,333 will be
available for award by formula allotment. Because the Corporation is
committed to supporting only high quality AmeriCorps programs, this
formula distribution is not and will not be treated as an entitlement
for states. These regulations specify that only those applicants that
submit high quality applications consistent with the requirements
contained in part 2522 of this rule and have an approved State Plan
under part 2513 will receive their formula allotment. The Corporation
is committed to working with States to ensure that the programs funded
through their formula allotment will meet the quality standards
established in this rule. For fiscal year 1994, all States must submit
to the Corporation a notice of intent to apply for formula funds by
March 31, 1994. The formula allotment for States not intending to apply
(or that do not submit a notice of intent to apply by the required
date) will be made available to eligible local applicants within the
State consistent with Sec. 2521.30(d) of this rule.
In addition, the Act instructs the Corporation to distribute to
States receiving their formula allotment a ``corresponding allotment''
of AmeriCorps educational awards; however, the statute does not clarify
what ``corresponding allotment'' means. The Corporation has therefore
determined that the appropriate interpretation of the legal meaning of
the expression ``corresponding allotment'' is the number of educational
awards that directly corresponds with the expected number of approved
AmeriCorps positions to be supported with program assistance.
Because a direct correlation does not exist between program dollars
and educational awards, the Corporation determined that it needed to
establish a plausible monetary relationship between the total value of
a State's formula award and the number of educational awards it would
receive. This relationship was determined by dividing each State's
formula award by the anticipated average Federal share of the cost of
an AmeriCorps position, calculated at $13,800 per participant (Program
Money$13,800=Educational Awards).\1\ Basing the definition of
``corresponding allotment'' on a relationship between program dollars
and educational awards reflects the Corporation's intent to ensure that
any State receiving program assistance for the support of AmeriCorps
participants would be ensured of receiving the requisite number of
educational awards for those participants. Thus, according to the above
calculus, Ohio, for example, will receive $2,228,498 through its
formula allotment and will also receive 161 AmeriCorps educational
awards. The overall expected distribution of formula grants and
educational awards is provided by State in the table below.
---------------------------------------------------------------------------
\1\This amount is exclusive of the national service educational
award, which is provided separately through the National Service
Trust Fund. This award represents an average estimate
FR Doc. 94-322 Corporation Grant Programs and Support and Investment Activities
d cost per
participant for start-up programs based on the experience of the
national service model programs funded by the Commission on National
and Community Service. Average costs for established programs,
including youth corps programs, are generally significantly lower.
Because the Corporation anticipates funding start-up programs as
well as programs that build on the infrastructure of existing
programs and organizations, and because the Corporation will
strongly encourage programs to exceed the minimum matching
requirements, it is expected that many programs will achieve
significantly lower average costs per position.
Formula Allocation of Program Funds and AmeriCorps Educational Awards to
States\1\
------------------------------------------------------------------------
Program Educational
State funds awards
------------------------------------------------------------------------
Alabama....................................... $831,565 60
Alaska........................................ 112,977 8
Arkansas...................................... 483,521 35
Arizona....................................... 752,837 55
California.................................... 6,107,718 443
Colorado...................................... 677,088 49
Connecticut................................... 674,582 49
Delaware...................................... 136,874 10
District of Columbia.......................... 124,841 9
Florida....................................... 2,661,624 193
Georgia....................................... 1,332,191 97
Hawaii........................................ 228,283 17
Idaho......................................... 207,141 15
Illinois...................................... 2,347,085 170
Indiana....................................... 1,138,927 83
Iowa.......................................... 570,551 41
Kansas........................................ 508,771 37
Kentucky...................................... 757,132 55
Louisiana..................................... 867,509 63
Maine......................................... 252,425 18
Maryland...................................... 982,217 71
Massachusetts................................. 1,234,071 89
Michigan...................................... 1,909,484 138
Minnesota..................................... 897,970 65
Mississippi................................... 529,412 38
Missouri...................................... 1,051,644 76
Montana....................................... 164,498 12
Nebraska...................................... 324,351 24
Nevada........................................ 246,884 18
New Hampshire................................. 228,004 17
New Jersey.................................... 1,586,048 115
New Mexico.................................... 311,489 23
New York...................................... 3,693,483 268
North Carolina................................ 1,362,733 99
North Dakota.................................. 131,279 10
Ohio.......................................... 2,228,498 161
Oklahoma...................................... 646,322 47
Oregon........................................ 584,123 42
Pennsylvania.................................. 2,440,838 177
Puerto Rico................................... 736,670 53
Rhode Island.................................. 205,912 15
South Carolina................................ 717,574 52
South Dakota.................................. 143,281 10
Tennessee..................................... 1,002,281 73
Texas......................................... 3,491,927 253
Utah.......................................... 353,656 26
Vermont....................................... 115,641 8
Virginia...................................... 1,272,453 92
Washington.................................... 1,000,500 72
West Virginia................................. 368,770 27
Wisconsin..................................... 1,004,349 73
Wyoming....................................... 93,332 7
-------------------------
Totals...................................... 51,833,333 3,756
------------------------------------------------------------------------
\1\The actual amount of each State's grant will be proportionally
reduced if the Corporation chooses to set aside money for participant
health and/or child care costs. In addition, numbers are based on the
1990 census but will be updated to incorporate the latest census
estimates from the Census Bureau.
The Corporation will consider the number of educational awards that
corresponds to a State's formula allotment as a minimum, and not as a
maximum, number of educational awards potentially provided to a State.
Thus, a State's ``minimum'' formula and award allotments should not
necessarily drive the design or size of programs applying for
assistance through State applications. Indeed, insofar as the formula
application includes high quality, cost-effective programs that request
more educational awards than would otherwise be provided through the
minimum allotment, those programs would be eligible to receive
additional awards from the Corporation on a competitive basis.
This mechanism for distributing educational awards not only
satisfies the legislative requirement but also makes sense for policy
and programmatic reasons. In making this determination, the Corporation
did, however, consider other alternatives. For example, the Corporation
considered the possibility of distributing the awards on a basis
proportional to the distribution of formula grants. Thus a State
receiving 12% of the total amount of funding available by formula
allocation would also receive the same percentage of educational
awards. The Corporation did not choose this option for several reasons.
First, from a legal standpoint, if the Congress had intended for
there to be a direct, proportional correlation between the overall
distribution of program funds and the overall distribution of
AmeriCorps educational awards, it would not have created educational
award set-asides for VISTA and CCC volunteers; nor would it have
allowed for the distribution of educational awards to programs the
Corporation does not fund or programs, such as professional corps, that
necessitate different levels of Federal support than other programs.
Second, from a programmatic standpoint, the distribution of
educational awards on a strict proportional basis would have resulted,
in some cases, in the unfortunate consequence of leaving some States
with insufficient programmatic funds to support the number of
participants for whom they would have received educational awards.
Finally, this approach also would have resulted in a lack of
flexibility on the part of the Corporation to provide support to
programs on the basis of quality and need, rather than on the basis of
an arbitrary proportional rule that, as noted above, bears no
relationship to anticipated or real program costs.
In short, the Corporation's need to support quality programs, to
ensure adequate financial support for all approved AmeriCorps positions
and educational awards within those programs, and the need to retain
flexibility to respond to individual State and program needs are
addressed through this distributive scheme.
(2) State Competition
In order to receive consideration for competitive funds, a State
must receive its formula allotment. In addition to the grants made
available to States by formula allocation, the Corporation will make at
least one-third of program funds, as well as an appropriate number of
educational awards as determined by the Corporation, available to
States on a competitive basis. For fiscal year 1994, the Corporation
expects that $51,833,333 will be available for this competition. The
following priorities will govern the competitive distribution of
AmeriCorps funds and educational awards to States:
(a) Priority for small states. The Corporation is committed to
ensuring that every State is able to participate in a meaningful way in
the AmeriCorps grant program. Specifically, the Corporation seeks to
enable every State that so desires to support at least one high quality
AmeriCorps program that meets the preferred minimum size guidelines of
20 full-time equivalent participants as stipulated in section I(D)(2),
above. Thus, for fiscal year 1994 the Corporation has established a
priority for small States, whereby any State that: (i) Does not
otherwise receive through the legislatively required formula allocation
adequate funding to support at least 20 full-time AmeriCorps positions,
and the same number of educational awards, and (ii) which can
demonstrate the existence of a high quality program(s), will receive
priority consideration for assistance through competitive State
funding.
In essence, this priority effectively establishes a small State
floor in the amounts of $276,100\2\ and 20 AmeriCorps educational
awards for those affected States (indicated in the table in section
II(B)(1)) that meet the quality and need criteria indicated above. This
priority does not, however, constitute a guarantee of assistance to any
State. Although the priority for small States will result in programs
otherwise supported through a State's formula allotment receiving
limited competitive funding, these programs will not be required to
address the national priorities established by the Corporation,
notwithstanding the provision specified in Sec. 2522.410(b)(1)(ii) of
this rule. Thus, every State meeting the guidelines will be able to
support at least one program of the minimum preferred size that
addresses State-based priorities.
---------------------------------------------------------------------------
\2\This figure was calculated by multiplying the preferred
minimum number of national service participants per state (20) by
the average Federal cost per participant ($13,800)
---------------------------------------------------------------------------
(b) National issue priorities. All programs, except those affected
by paragraph (a) above, that are submitted through State applications
for competitive funding should address the national issue priorities
explained in section I(C)(2) of this supplementary section. In general,
most activities conducted by programs should substantially address one
or more of the national priorities. However, the Corporation may grant
waivers if a program demonstrates that its proposed activities are (i)
more essential for their communities and (ii) not being met in any
other way.
(c) Priority for existing grantees. In fiscal year 1994, the
Corporation will give priority to National Service Demonstration
Programs and American Conservation and Youth Service Corps Programs
that received funding from the Commission on National and Community
Service. While this one-year priority does not constitute a guarantee
for renewal funding, the Corporation expects that those programs that
meet the minimum requirements and quality standards stipulated in this
rule will receive support. In addition, States should give priority to
these programs as well.
(3) Direct National Competition
(a) Allocation. After funds have been allotted to the States and
set aside for Indian tribes and U.S. territories, any remaining
AmeriCorps program funds will be distributed directly by the
Corporation on a competitive basis. In fiscal year 1994, the
Corporation anticipates making $48.8 million available for award in
this category. In general, subdivisions of States, Indian tribes,
public or private nonprofit organizations (including labor
organizations), institutions of higher education, and Federal agencies
may apply for these funds, although no more than one-third may go to
Federal agencies. Unless a program has a clear and compelling reason
not to do so, programs funded through this competition should address
any national priorities established pursuant to Sec. 2522.410(b)(1)(ii)
of this rule.
(b) Limitations for fiscal year 1994. The Corporation will limit
this category of funding in fiscal year 1994 to the following:
(i) Programs operated or funded by Federal agencies.
(ii) Programs operated or funded by national nonprofit
organizations.
(iii) Professional corps programs.
(iv) Programs operated in more than one State.
The Corporation intends to use this category of funding primarily
to support programs that are national or regional in scope.
In general, programs that are operated locally by nonprofits,
subdivisions of States or institutions of higher education can and
should apply through their respective States; doing so will increase
the chances that the programs are part of a comprehensive State plan,
which will enable the Corporation to ensure that all local programs are
appropriately monitored and receive technical assistance necessary to
support high-quality programs.
To clarify the eligibility of applicants in fiscal year 1994, the
Corporation will consider a national nonprofit organization to be one
whose membership, activities, constituencies, or mission is national in
scope. In addition, although programs operated or funded by States are
not otherwise eligible to receive direct national competitive funds,
those National Service Demonstration Programs supported by the
Commission on National and Community Service that operate in more than
one State may compete for support in fiscal year 1994.
(c) Agreements with Federal agencies. Technically, when a Federal
agency competes for and receives program funds under this category, the
Corporation will not give that agency a grant but rather will enter
into a contract or cooperative agreement that includes the transfer of
funds. Federal agencies may either subgrant to other nonprofits or
other eligible entities, or operate programs directly. Through this
rule the Corporation has clarified the scope and purposes of the
prospective awards to Federal Agencies as follows:
(i) AmeriCorps grants should serve as ``seed money'' to leverage
agencies' existing resources and grant-making capacity toward the goal
of integrating service more fully into agencies' programs and
activities. Agencies should plan, ultimately, to support independently
service initiatives developed or expanded with Corporation assistance.
(ii) Only Cabinet level departments and independent agencies may
apply. Bureaus, division, and local and regional offices of such
departments and agencies can only apply through the central department
or agency. An application may, however, include proposals for more than
one program. The primary purpose of this restriction is to ensure that
all national and community service efforts within a department or
agency are centrally coordinated and are part of a coherent strategy.
The Corporation also expects that many programs supported by
Federal agencies with Corporation assistance will be sub-granted or
operated in partnership with community-based organizations.
(C) Application Requirements/Issues
(1) Content and Degree of Specificity
In Secs. 2522.300-320 of this rule, the Corporation specifies the
application requirements for all applicants seeking AmeriCorps program
assistance, including national service educational awards. While the
Corporation will provide applicants with additional guidance through
approved application materials, the Corporation will require every
applicant--regardless of whether the applicant is a State or other
eligible entity applying directly to the Corporation--to include a
complete, detailed description of the proposed program(s) to be funded.
In essence, applicants will not be able to apply to the Corporation
for assistance for the purpose of subgranting awards to programs or
organizations that are not yet known at the time of application.
Especially in the case of States or other subgranting entities,
applicants will therefore need to know the specific programs to be
proposed and will need to provide required information on such programs
at the time of application. This requirement will ensure that the
Corporation will have complete information with which to select the
highest quality programs.
In general, this requirement will apply to States for both formula
and competitive applications, although the degree of specificity about
programs may vary slightly. In fiscal year 1994, the Corporation--
through the application materials--will require States to summarize in
the narrative of the proposal information on programs proposed under
the formula allotment (although States will be required to provide a
complete application for each program in the appendix to the State's
application). Specific, detailed information will be required for each
individual program included in any application for competitive funding.
In addition, the statute requires that the Corporation obtain
certain information on all programs prior to making any award. This
information includes:
(a) A description of service placements. The Act requires that an
application for AmeriCorps program funds and/or educational awards
include a description of the positions into which participants will be
placed, as well as a description of the minimum qualifications that
individuals must meet to be placed in those positions.
With this rule, the Corporation requires that such descriptions
describe the nature of specific tasks to be performed by participants.
Although individual ``job descriptions'' are not required for every
participant, applicants should clearly identify the specific nature of
assignments to be performed by participants within service projects.
This provision not only addresses a legislative requirement but also
provides additional information that will enable the Corporation to
assess the expected impact the program will achieve.
(b) Coordination with State Plan. The Corporation proposes to
require all applicants that are not States coordinate their activities
with the application of the State, including the State Plan, so as to
build upon existing programs and not duplicate efforts. Applicants
applying directly to the Corporation in fiscal year 1994 will be
required to coordinate their planned efforts with the State in which
the program(s) will operate, notwithstanding the fact that the
application of the State will be due to the Commission after the
applications of applicants other than States. The application should
identify efforts undertaken to this effect, including documentation of
meetings or correspondence.
(2) Special Requirements for State Applicants
(a) Number of programs in the competitive portion of a State
application. To ensure that States submit only the highest quality
programs for funding, the Corporation has limited the number of
programs a State may include in its application for competitive funding
as indicated in the table below. Every State may include at least three
programs, and each State may include an additional program for each
full percentage point of the population that State contains. New York,
for example, will receive the initial three, plus an additional seven
corresponding to the 7% of the total population New York contains, for
a total of ten.
Maximum Number of Programs That May Be Included in States' Applications
for Competitive Funding
------------------------------------------------------------------------
Maximum
State number of
programs
------------------------------------------------------------------------
Alabama..................................................... 5
Alaska...................................................... 3
Arkansas.................................................... 4
Arizona..................................................... 4
California.................................................. 15
Colorado.................................................... 4
Connecticut................................................. 4
Delaware.................................................... 3
District of Columbia........................................ 3
Florida..................................................... 8
Georgia..................................................... 6
Hawaii...................................................... 3
Idaho....................................................... 3
Illinois.................................................... 8
Indiana..................................................... 5
Iowa........................................................ 4
Kansas...................................................... 4
Kentucky.................................................... 4
Louisiana................................................... 5
Maine....................................................... 3
Maryland.................................................... 5
Massachusetts............................................... 5
Michigan.................................................... 7
Minnesota................................................... 5
Mississippi................................................. 4
Missouri.................................................... 5
Montana..................................................... 3
Nebraska.................................................... 4
Nevada...................................................... 3
New Hampshire............................................... 3
New Jersey.................................................. 6
New Mexico.................................................. 4
New York.................................................... 10
North Carolina.............................................. 6
North Dakota................................................ 3
Ohio........................................................ 7
Oklahoma.................................................... 4
Oregon...................................................... 4
Pennsylvania................................................ 8
Puerto Rico................................................. 4
Rhode Island................................................ 3
South Carolina.............................................. 4
South Dakota................................................ 3
Tennessee................................................... 5
Texas....................................................... 10
Utah........................................................ 4
Vermont..................................................... 3
Virginia.................................................... 5
Washington.................................................. 5
West Virginia............................................... 4
Wisconsin................................................... 5
Wyoming..................................................... 3
-----------
Totals................................................ 256
------------------------------------------------------------------------
Because of the limited amount of funding available, the selection
process will be very competitive, with only about one in five proposed
programs likely to receive support. Furthermore, the Corporation does
not anticipate that any one State will receive more than a third of the
available funds, and most States will receive considerably less. States
are advised to submit applications proposing only coherent, high
quality programs that: address the program and size requirements
explained in part 2522 of this rule; are consistent with the State
plan; and are cost-effective. States will not increase the chances of
their programs receiving funding by increasing the total number of
programs they submit.
(b) Use of competitive funds to support programs included in the
formula portion of a State application. The cost of programs included
in the formula application may not exceed a State's formula allotment.
However, from the competitive State funds, States may request
additional funds and educational awards for programs listed in the
formula section of the applications if either (i) the State receives
small State priority consideration (as explained in Sec. II(B)(2),
above), or (ii) programs listed in the formula portion of the
application meet the national priorities explained in Sec. I(C)(2),
above. Nevertheless, States should clearly indicate which programs will
be supported with formula assistance if competitive funding is not
received.
(c) Limitation on State-run programs. The Act requires an assurance
that at least sixty percent of Corporation assistance provided to a
State will be used to support programs that are not operated by the
State or State agency. However, the Corporation may waive this
requirement if a State demonstrates that it did not receive an adequate
number of acceptable applications from applicants other than States
during the competitive selection process.
The Corporation recognizes that this provision may be problematic
for some States with large existing AmeriCorps programs previously
supported by the Commission on National and Community Service,
especially if the programs are operated by the State (through a
department or agency). Such States should not attempt to comply with
the 60% requirement if doing so would necessitate submission of more
than five program proposals for competitive funding, proposals with
inflated budgets, or proposals for programs that are not of high
quality. In order to ensure that States with large existing grantees
may participate, the Corporation will consider such States unable to
comply.
(D) Selection Criteria Issues
In order to preserve maximum flexibility from year to year to
respond to changing priorities, the proposed regulations do not
substantively add to or modify the selection criteria listed in the
statute, except that, for State applicants, the quality of the State
plan will be a criterion in the selection of programs. As explained in
the ``State Plan'' section of this Supplementary Section above, the
quality of the State plan will be one factor in determining whether a
State's application for its formula allotment is accepted or rejected,
and insofar as a State has a high-quality State plan it will benefit
those programs in the competitive selection process as well. Other
changes or additions to the selection criteria will be provided
annually in the Corporation's application materials.
Investment for Quality and Innovation Issues
(1) Purpose
The Investment for Quality and Innovation activities are a
relatively small but nevertheless critical component of the
Corporation's overall national and community service efforts.
Activities funded under this part aim to build service infrastructure,
and include training, technical assistance, fellowships, service
awards, clearinghouses, research, recruitment, and innovative and
demonstration programs.
The Investment for Quality and Innovation activities apply to a
broad spectrum of service areas, including, but not limited to, the
service-learning and AmeriCorps programs described in parts 2515-2524
of this rule. (Conversely, the training and technical assistance
activities described in part 2524 of this rule target strictly the
AmeriCorps programs described in parts 2520-2523.) All of these
activities, however, are aimed at improving the quality of the service
field and, ultimately, at finding the best ways to meet the Nation's
needs through service.
(2) Priorities
This rule divides these activities into three groups: Innovative
and Special Demonstration Programs; Technical Assistance, Training, and
Other Service Infrastructure-building Activities; and Special
Activities. The precise activities that are allowable under each area
are specified in parts 2531-2533. Given the limited resources that will
be allotted to these activities (the Corporation anticipates the
availability of $15 million in fiscal year 1994), the Corporation may
exercise its statutory authority to set priorities that will limit the
categories of activities that will be eligible for funding. If the
Corporation chooses to establish such priorities for fiscal year 1994,
it will seek to concentrate funds on those activities that will be most
effective and efficient in building service infrastructure.
Miscellaneous Requirements
Interested parties should be advised that because the assistance
provided under the authority of this rule constitutes Federal financial
assistance for the purposes of title VI of the Civil Rights Act of 1964
(which bars discrimination based on race, color, or national origin),
title IX of the Education Amendments of 1972 (which bars discrimination
on the basis of gender), the Rehabilitation Act of 1973 (which bars
discrimination on the basis of disability), and the Age Discrimination
Act of 1975 (which bars discrimination on the basis of age), grantees
will be required to comply with the aforementioned provisions of
Federal law.
Grant recipients will be expected to expend Corporation grants in a
judicious and reasonable manner, consistent with pertinent provisions
of Federal law and regulations. Grantees must keep records according to
Corporation guidelines, including records that fully disclose the
amount and disposition of the proceeds of a Corporation grant. The
Inspector General of the Corporation (or other authorized official)
shall have access, for the purpose of audit and examination, to the
books and records of grantees that may be related or pertinent to the
Corporation grant.
Grantees should further be advised that Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and Local
Governments, and Administrative Requirements for Grants and Cooperative
Agreements to other than State and Local Governments, as well as
regulations for the Privacy Act, Freedom of Information Act, Sunshine
Act, Government-wide Debarment and Suspension, and Government-wide
Requirements for Drug-Free Workplace will also be published prior to
awarding grants.
As required by the Regulatory Flexibility Act, it is hereby
certified that this rule will not have a significant impact on small
business entities.
The Corporation has separately submitted to the Office of
Management and Budget, under the terms of the Paperwork Reduction Act,
application packages to be used by applicants when applying for
Corporation grants. To request copies of the applications, please
contact the Corporation for National and Community Service at the
address listed above.
As required by the Paperwork Reduction Act of 1980, the Corporation
will submit the information collection requirements contained in this
rule to the Office of Management and Budget for its review (44 U.S.C.
3504(h)). The information collection requirements are needed in order
to provide assistance to parties affected by these regulations, in
accordance with statutory mandates.
(Catalog of Federal Domestic Assistance Numbers: 94.003 for State
Commissions, Alternative Administrative Entities, and Transitional
Entities; 94.004 for K-12 Service-Learning Programs; 94.005 for
Higher Education Service-Learning Programs; 94.006 for AmeriCorps
Programs; 94.007 for Investment for Quality and Innovation Programs)
List of Subjects
45 CFR Part 2510
Grant programs--social programs, Volunteers.
45 CFR Part 2513
Grant programs--social programs, Reporting and recordkeeping
requirements, Volunteers.
45 CFR Part 2515
Grant programs--social programs, Nonprofit organizations,
Volunteers.
45 CFR Part 2516
Elementary and secondary education, Grant programs--social
programs, Indians, Nonprofit organizations, Reporting and recordkeeping
requirements, Volunteers.
45 CFR Part 2517
Community development, Grant programs--social programs, Nonprofit
organizations, Reporting and recordkeeping requirements, Volunteers.
45 CFR Part 2518
Grant programs--social programs, Nonprofit organizations, Reporting
and recordkeeping requirements, Volunteers.
45 CFR Part 2519
Colleges and universities, Grant programs--social programs,
Nonprofit organizations, Reporting and recordkeeping requirements,
Volunteers.
45 CFR Part 2520
AmeriCorps, Grant programs--social programs, Volunteers.
45 CFR Part 2521
AmeriCorps, Grant programs--social programs, Volunteers.
45 CFR Part 2522
AmeriCorps, Grant programs--social programs, Reporting and
recordkeeping requirements, Volunteers.
45 CFR Part 2523
AmeriCorps, Grant programs--social programs, Volunteers.
45 CFR Part 2524
AmeriCorps, Grant programs--social programs, Technical assistance,
Volunteers.
45 CFR Part 2530
Grant programs--social programs, Volunteers.
45 CFR Part 2531
Grant programs--social programs, Volunteers.
45 CFR Part 2532
Grant programs--social programs, Volunteers, Technical assistance.
45 CFR Part 2533
Decorations, Medals, Awards, Scholarships and fellowships,
Volunteers.
45 CFR Part 2540
Administrative practice and procedure, Grant programs--social
programs, Reporting and recordkeeping requirements, Volunteers.
Dated: January 3, 1994.
Catherine Milton,
Vice President and Director of National and Community Service Programs.
Accordingly, the Corporation amends title 45, chapter XXV of the
Code of Federal Regulations by adding parts 2510, 2513, 2515 through
2524, 2530 through 2533, and 2540 to read as follows:
PART 2510--OVERALL PURPOSES AND DEFINITIONS
Sec.
2510.10 What are the purposes of the programs and activities of the
Corporation for National and Community Service?
2510.20 Definitions.
Authority: 42 U.S.C. 12501 et seq.
Sec. 2510.10 What are the purposes of the programs and activities of
the Corporation for National and Community Service?
The National and Community Service Trust Act of 1993 established
the Corporation for National and Community Service (the Corporation).
The Corporation's mission is to engage Americans of all ages and
backgrounds in community-based service. This service will address the
Nation's educational, public safety, human, and environmental needs to
achieve direct and demonstrable results. In doing so, the Corporation
will foster civic responsibility, strengthen the ties that bind us
together as a people, and provide educational opportunity for those who
make a substantial commitment to service. The Corporation will
undertake activities and provide assistance to States and other
eligible entities to support national and community service programs
and to achieve other purposes consistent with its mission.
Sec. 2510.20 Definitions.
The following definitions apply to terms used in 45 CFR parts 2510
through 2550:
Act. The term Act means the National and Community Service Act of
1990, as amended (42 U.S.C. 12501 et seq.).
Administrative costs. The term administrative costs means costs
associated with the overall administration of a Corporation program.
(1) Administrative costs include such costs as the following:
(i) Indirect costs (i.e., costs identified with two or more cost
objectives but not identified with a particular cost objective) as
described in applicable provisions of Office of Management and Budget
Circulars that relate to indirect costs.
(ii) Costs for financial, accounting, or contracting functions.
(iii) Costs for insurance that protects the entity that operates
the program.
(iv) Costs for salaries and benefits of the director and any other
administrative staff of the program.
(2) Administrative costs do not include allowable costs directly
related to program operations. These program costs include such costs
as the following:
(i) Costs for living allowances and training of participants.
(ii) Costs for staff training.
(iii) Costs for travel.
(iv) Costs related to the evaluation of the program.
(v) Costs for salaries and benefits of staff who recruit, train,
place, or supervise participants.
(3) Particular costs such as those associated with staff who
perform both administrative and program functions may be prorated
between administrative costs and costs directly related to program
operations.
Adult volunteer. The term adult volunteer means an individual, such
as an older adult, an individual with a disability, a parent, or an
employee of a business or public or private nonprofit organization,
who--
(1) Works without financial remuneration in an educational
institution to assist students or out-of-school youth; and
(2) Is beyond the age of compulsory school attendance in the State
in which the educational institution is located.
AmeriCorps. The term AmeriCorps means the combination of all
AmeriCorps programs and participants.
AmeriCorps educational award. The term AmeriCorps educational award
means a national service educational award described in section 147 of
the Act.
AmeriCorps participant. The term AmeriCorps participant means any
individual who is serving in--
(1) An AmeriCorps program;
(2) An approved AmeriCorps position; or
(3) Both.
AmeriCorps program. The term AmeriCorps program means--
(1) Any program that receives approved AmeriCorps positions;
(2) Any program that receives Corporation funds under section 121
of the Act; or
(3) Both.
Approved AmeriCorps position. The term approved AmeriCorps position
means an AmeriCorps position for which the Corporation has approved the
provision of an AmeriCorps educational award as one of the benefits to
be provided for successful service in the position.
Carry out. The term carry out, when used in connection with an
AmeriCorps program described in section 122 of the Act, means the
planning, establishment, operation, expansion, or replication of the
program.
Chief Executive Officer. The term Chief Executive Officer, except
when used to refer to the chief executive officer of a State, means the
Chief Executive Officer of the Corporation appointed under section 193
of the Act.
Community-based agency. The term community-based agency means a
private nonprofit organization (including a church or other religious
entity) that--
(1) Is representative of a community or a significant segment of a
community; and
(2) Is engaged in meeting educational, public safety, human, or
environmental community needs.
Corporation. The term Corporation means the Corporation for
National and Community Service established under section 191 of the
Act.
Economically disadvantaged. The term economically disadvantaged
means, with respect to an individual, an individual who is determined
by the Chief Executive Officer to be low-income according to the latest
available data from the Department of Commerce.
Elementary school. The term elementary school has the same meaning
given the term in section 1471(8) of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 2891(8)).
Indian. The term Indian means a person who is a member of an Indian
tribe, or is a `Native', as defined in section 3(b) of the Alaska
Native Claims Settlement Act (43 U.S.C. 1602(b)).
Indian lands. The term Indian lands means any real property owned
by an Indian tribe, any real property held in trust by the United
States for an Indian or Indian tribe, and any real property held by an
Indian or Indian tribe that is subject to restrictions on alienation
imposed by the United States.
Indian tribe. The term Indian tribe means--
(1) An Indian tribe, band, nation, or other organized group or
community, including--
(i) Any Native village, as defined in section 3(c) of the Alaska
Native Claims Settlement Act (43 U.S.C. 1602(c)), whether organized
traditionally or pursuant to the Act of June 18, 1934 (commonly known
as the `Indian Reorganization Act', 25 U.S. C. 461 et seq.); and
(ii) Any Regional Corporation or Village Corporation, as defined in
subsection (g) or (j), respectively, of section 3 of the Alaska Native
Claims Settlement Act (43 U.S.C. 1602 (g) or (j)), that is recognized
as eligible for the special programs and services provided by the
United States under Federal law to Indians because of their status as
Indians; and
(2) Any tribal organization controlled, sanctioned, or chartered by
an entity described in paragraph (1) of this definition.
Individual with a disability. Except as provided in section 175(a)
of the Act, the term individual with a disability has the meaning given
the term in section 7(8)(B) of the Rehabilitation Act of 1973 (29
U.S.C. 706(8)(B)), and includes an individual with a physical or mental
impairment.
Infrastructure-building activities. The term infrastructure-
building activities refers to activities that increase the capacity of
organizations, programs and individuals to provide high quality service
to communities.
Institution of higher education. The term institution of higher
education has the same meaning given the term in section 1201(a) of the
Higher Education Act of 1965 (20 U.S.C. 1141(a)).
Local educational agency (LEA). The term local educational agency
has the same meaning given the term in section 1471(12) of the
Elementary and Secondary Education Act of 1965 (20 U.S.C. 2891(12)).
National nonprofit. The term national nonprofit means any nonprofit
organization whose mission, membership, activities, or constituencies
are national in scope.
National service laws. The term national service laws means the Act
and the Domestic Volunteer Service Act of 1973 (42 U.S.C. 4950 et
seq.).
Objective. The term objective means a desired accomplishment of a
program.
Out-of-school youth. The term out-of-school youth means an
individual who--
(1) Has not attained the age of 27;
(2) Has not completed college or its equivalent; and
(3) Is not enrolled in an elementary or secondary school or
institution of higher education.
Participant. (1) The term participant means an individual enrolled
in a program that receives assistance under the Act.
(2) A participant may not be considered to be an employee of the
program in which the participant is enrolled.
Partnership program. The term partnership program means a program
through which an adult volunteer, a public or private nonprofit
organization, an institution of higher education, or a business assists
a local educational agency.
Program. The term program, unless the context otherwise requires,
and except when used as part of the term academic program, means a
program described in section 111(a) (other than a program referred to
in paragraph (3)(B) of that section), 117A(a), 119(b)(1), or 122(a) of
the Act, or in paragraph (1) or (2) of section 152(b) of the Act, or an
activity that could be funded under sections 198, 198C, or 198D of the
Act.
Program sponsor. The term program sponsor means an entity
responsible for recruiting, selecting, and training participants,
providing them benefits and support services, engaging them in regular
group activities, and placing them in projects.
Project. The term project means an activity, carried out through a
program that receives assistance under the Act, that results in a
specific identifiable service or improvement that otherwise would not
be done with existing funds, and that does not duplicate the routine
services or functions of the employer to whom participants are
assigned.
Project sponsor. The term project sponsor means an organization, or
other entity, that has been selected to provide a placement for a
participant.
Qualified individual with a disability. The term qualified
individual with a disability has the meaning given the term in section
101(8) of the Americans with Disabilities Act of 1990 (42 U.S.C.
12111(8)).
School-age youth. The term school-age youth means--
(1) Individuals between the ages of 5 and 17, inclusive; and
(2) Children with disabilities, as defined in section 602(a)(1) of
the Individuals with Disabilities Education Act (20 U.S.C. 1401(a)(1)),
who receive services under part B of that Act.
Secondary school. The term secondary school has the same meaning
given the term in section 1471(21) of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 2891(21)).
Service-learning. The term service-learning means a method under
which students or participants learn and develop through active
participation in thoughtfully organized service that--
(1) Is conducted in and meets the needs of a community and is
coordinated with an elementary school, secondary school, institution of
higher education, or community service program, and with the community;
(2) Helps foster civic responsibility;
(3) Is integrated into and enhances the academic curriculum of the
students or the educational components of the community service program
in which the participants are enrolled; and
(4) Includes structured time for the students and participants to
reflect on the service experience.
Service-learning coordinator. The term service-learning coordinator
means an individual trained in service-learning who identifies
community partners for LEAs; assists in designing and implementing
local partnerships service-learning programs; provides technical
assistance and information to, and facilitates the training of,
teachers; and provides other services for an LEA.
State. The term State means each of the several States, the
District of Columbia, the Commonwealth of Puerto Rico, the United
States Virgin Islands, Guam, American Samoa, and the Commonwealth of
the Northern Mariana Islands. The term also includes Palau, until the
Compact of Free Association is ratified.
State Commission. The term State Commission means a State
Commission on National and Community Service maintained by a State
pursuant to section 178 of the Act. Except when used in section 178,
the term includes an alternative administrative entity for a State
approved by the Corporation under that section to act in lieu of a
State Commission.
State educational agency (SEA). The term State educational agency
has the same meaning given that term in section 1471(23) of the
Elementary and Secondary Education Act of 1965 (20 U.S.C. 2891(23)).
Student. The term student means an individual who is enrolled in an
elementary or secondary school or institution of higher education on a
full-time or part-time basis.
Subdivision of a State. The term subdivision of a State means a
governmental unit within a State other than a unit with Statewide
responsibilities.
PART 2513--STATE PLAN: PURPOSE, APPLICATION REQUIREMENTS AND
SELECTION CRITERIA
Sec.
2513.10 Who must submit a State Plan?
2513.20 What are the purposes of a State Plan?
2513.30 What information must a State Plan contain?
2513.40 How will the State Plans be evaluated?
Authority: 42 U.S.C. 12501 et seq.
Sec. 2513.10 Who must submit a State Plan?
The fifty States, the District of Columbia and Puerto Rico, through
a Corporation-approved State Commission, Alternative Administrative
Entity, or Transitional Entity must submit a comprehensive national and
community service plan (``State Plan'') in order to apply to the
Corporation for support under parts 2515 through 2524 of this chapter.
Sec. 2513.20 What are the purposes of a State Plan?
The purposes of the State Plan are:
(a) To set forth the State's plan for promoting national and
community service and strengthening its service infrastructure,
including how Corporation-funded programs fit into the plan;
(b) To establish specific priorities and goals that advance the
State's plan for strengthening its service program infrastructure and
to specify strategies for achieving the stated goals;
(c) To inform the Corporation of the relevant historical background
of the State's infrastructure for supporting national and community
service and other volunteer opportunities, as well as the current
status of such infrastructure;
(d) To assist the Corporation in making decisions on applications
to receive formula and competitive funding under Sec. 2521.30 of this
chapter and to assist the Corporation in assessing a State's
application for renewal funding for State administrative funds as
provided in part 2550 of this chapter; and
(e) To serve as a working document that forms the basis of on-going
dialogue between the State and the Corporation and which is subject to
modifications as circumstances require.
Sec. 2513.30 What information must a State Plan contain?
The State Plan must include the following information:
(a) An overview of a State's experience in coordinating and
supporting the network of service programs within the State that
address educational, public safety, human, and environmental needs,
including, where appropriate, a description of specific service
programs. This overview should encompass programs that have operated
independently of and/or without financial support from the State;
(b) A description of the State's priorities and vision for
strengthening the service program infrastructure, including how
programs proposed for Corporation funding fit into this vision. The
plan should also describe how State priorities relate to any national
priorities established by the Corporation;
(c) A description of the goals established to advance the State's
plan, including the strategies for achieving such goals. With respect
to technical assistance activities (if any) and programs proposed to be
funded by the Corporation, the plan should describe how such activities
and programs will be coordinated with other service programs within the
State. The plan should also describe the manner and extent to which the
proposed programs will build on existing programs, including
Corporation programs such as Serve-America, Higher Education, and
programs funded under the Domestic Volunteer Service Act and other
programs;
(d) A description of the extent to which the State entity has
coordinated its efforts with the State educational agency (SEA) in the
SEA's application for school-based service learning funds;
(e) A description of how the State reached out to a broad cross-
section of individuals and organizations to obtain their participation
in the development of the State plan, including a discussion of the
types of organizations and individuals who were actually involved in
the process and the manner and extent of their involvement; and
(f) Such other information as the Corporation may reasonably
require.
Sec. 2513.40 How will the State Plans be evaluated?
State plans will be evaluated on the basis of the following
criteria:
(a) The quality of the plan as evidenced by:
(1) The development and quality of realistic goals and objectives
for moving service ahead in the State;
(2) The extent to which proposed strategies can reasonably be
expected to accomplish stated goals;
(3) The extent of input in the development of the State plan from a
broad cross-section of individuals and organizations including
community-based agencies; organizations with a demonstrated record of
providing educational, public safety, human, or environmental services;
residents of the State, including youth and other prospective
participants, State Education Agencies; traditional service
organizations; and labor unions;
(b) The sustainability of the national service efforts outlined in
the plan, as evidenced by the extent to which they are supported by:
(1) The State, through financial, in-kind and bi-partisan political
support, including the existence of supportive legislation; and
(2) Other support, including the financial, in-kind and other
support of the private sector, foundations, and other entities and
individuals; and
(c) Such other criteria as the Corporation deems necessary.
PART 2515--SERVICE-LEARNING PROGRAM PURPOSES AND DEFINITIONS
Sec.
2515.10 What are the service-learning programs of the Corporation
for National and Community Service?
2515.20 What definitions apply to service-learning programs?
Authority: 42 U.S.C. 12501 et seq.
Sec. 2515.10 What are the service-learning programs of the Corporation
for National and Community Service?
(a) There are three service-learning programs:
(1) School-based programs, described in part 2516 of this chapter.
(2) Community-based programs, described in part 2517 of this
chapter.
(3) Higher education programs, described in part 2519 of this
chapter.
(b) Each program gives participants the opportunity to learn and
develop their own capabilities through service-learning, while
addressing needs in the community.
Sec. 2515.20 What definitions apply to service-learning programs?
In addition to the definitions in Sec. 2510.20 of this chapter, the
following definitions apply to terms used in parts 2515 through 2519 of
this chapter.
Grantmaking entity. (1) For school-based programs, the term
grantmaking entity means a public or private nonprofit organization
experienced in service-learning that--
(i) Submits an application to make grants for school-based service-
learning programs; and
(ii) Was in existence at least one year before the date on which
the organization submitted the application.
(2) For community-based programs, the term grantmaking entity means
a qualified organization that--
(i) Submits an application to make grants to qualified
organizations to implement, operate, expand, or replicate community-
based service programs that provide for educational, public safety,
human, or environmental service by school-age youth in two or more
States; and
(ii) Was in existence at least one year before the date on which
the organization submitted the application.
Partnership. The term partnership means an organization comprised
of two or more entities that have entered into a written agreement
specifying the responsibilities of each partner with respect to a
service-learning program.
Qualified organization. The term qualified organization means a
public or private nonprofit organization, other than a grantmaking
entity, that--
(1) Has experience in working with school-age youth; and
(2) Was in existence at least one year before the date on which the
organization submitted an application for a service-learning program.
U.S. Territory. The term U.S. Territory means the Virgin Islands,
Guam, American Samoa, the Commonwealth of the Northern Mariana Islands,
and Palua, until the Compact of Free Association with Palau is
ratified.
PART 2516--SCHOOL-BASED SERVICE-LEARNING PROGRAMS
Subpart A--Eligibility to Apply
Sec.
2516.100 Who may apply for a direct grant from the Corporation?
2516.110 Who may apply for a subgrant from a Corporation grantee?
Subpart B--Use of Grant Funds
2516.200 How may grant funds be used?
Subpart C--Eligibility to Participate
2516.300 Who may participate in a school-based service-learning
program?
2516.310 May private school students participate?
Subpart D--Application Contents
2516.400 What must a State or Indian tribe include in an
application for a grant?
2516.410 What must a grantmaking entity, local partnership, or LEA
include in an application for a grant?
2516.420 What must an LEA, local partnership, or qualified
organization include in an application for a subgrant?
Subpart E--Application Review
2516.500 How does the Corporation review the merits of an
application?
2516.510 What happens if the Corporation rejects a State's
application for an allotment grant?
2516.520 How does a State, Indian tribe, or grantmaking entity
review the merits of an application?
Subpart F--Distribution of Funds
2516.600 How are funds for school-based service-learning programs
distributed?
Subpart G--Funding Requirements
2516.700 Are matching funds required?
2516.710 Are there limits on the use of funds?
2516.720 What is the length of each type of grant?
2516.730 May an applicant submit multiple applications for the same
project?
Subpart H--Monitoring and Evaluation Requirements
2516.800 What are the purposes of monitoring and evaluation?
2516.810 By what standards will service-learning programs be
evaluated?
2516.820 What must grantees and subgrantees do to monitor and
evaluate the effectiveness of their programs?
2516.830 What must a Corporation grantee do to monitor and evaluate
the effectiveness of the programs of its subgrantees?
2516.840 Must grantees or subgrantees perform independent
evaluations?
2516.850 What will the Corporation do to evaluate the overall
success of the service-learning program?
2516.860 Will information on individual participants be kept
confidential?
Authority: 42 U.S.C. 12501 et seq.
Subpart A--Eligibility to Apply
Sec. 2516.100 Who may apply for a direct grant from the Corporation?
(a) The following entities may apply for a direct grant from the
Corporation:
(1) A State, through a State educational agency (SEA) as defined in
Sec. 2510.20 of this chapter. For the purpose of this part, ``State''
means one of the 50 States, the District of Columbia, the Commonwealth
of Puerto Rico, and, except for the purpose of Sec. 2516.600 (b), U.S.
Territories.
(2) An Indian tribe.
(3) A U.S. Territory as defined in Sec. 2515.20 of this chapter.
(4) A grantmaking entity as defined in Sec. 2515.20 of this
chapter.
(5) For activities in a nonparticipating State, a local educational
agency (LEA) as defined in Sec. 2510.20 of this chapter or a local
partnership as described in Sec. 2516.110.
(b) The types of grants for which each entity is eligible are
described in Sec. 2516.200.
Sec. 2516.110 Who may apply for a subgrant from a Corporation grantee?
Entities that may apply for a subgrant from a State, Indian tribe,
or grantmaking entity are:
(a) An LEA, for a grant from a State for planning school-based
service-learning programs.
(b) A local partnership, for a grant from a State or a grantmaking
entity to implement, operate, or expand a school-based service learning
program.
(1) The partnership must include an LEA and one or more community
partners. The partnership may include a private for-profit business or
private elementary or secondary school.
(2) The community partners must include a public or private
nonprofit organization that has demonstrated expertise in the provision
of services to meet educational, public safety, human, or environmental
needs; was in existence at least one year before the date on which the
organization submitted an application under this part; and will make
projects available for participants, who must be students.
(c) A local partnership, for a grant from a State or a grantmaking
entity to implement, operate, or expand an adult volunteer program. The
partnership must include an LEA and one or more public or private
nonprofit organizations, other educational agencies, or private for-
profit businesses.
(d) A qualified organization as defined in Sec. 2515.20 of this
chapter, for a grant from a State or Indian tribe for planning or
building the capacity of the State or Indian tribe.
Subpart B--Use of Grant Funds
Sec. 2516.200 How may grant funds be used?
Funds under a school-based service-learning grant may be used for
the purposes described in this section.
(a) Planning and capacity-building for States and Indian tribes.
(1) A State or Indian tribe may use funds to pay for planning and
building its capacity to implement school-based service-learning
programs. These entities may use funds either directly or through
subgrants or contracts with qualified organizations.
(2) Authorized activities include the following:
(i) Providing training for teachers, supervisors, personnel from
community-based agencies (particularly with regard to the utilization
of participants) and trainers, conducted by qualified individuals or
organizations experienced in service-learning.
(ii) Developing service-learning curricula to be integrated into
academic programs, including the age-appropriate learning components
for students to analyze and apply their service experiences.
(iii) Forming local partnerships described in Sec. 2516.110 to
develop school-based service-learning programs in accordance with this
part.
(iv) Devising appropriate methods for research and evaluation of
the educational value of service-learning and the effect of service-
learning activities on communities.
(v) Establishing effective outreach and dissemination of
information to ensure the broadest possible involvement of community-
based agencies with demonstrated effectiveness in working with school-
age youth in their communities.
(b) Implementing, operating, and expanding programs. (1) A State or
grantmaking entity may use funds to make subgrants to local
partnerships described in Sec. 2516.110(b) to implement, operate, or
expand school-based service-learning programs.
(2) If a State does not submit an application that meets the
requirements for an allotment grant under Sec. 2516.400, the
Corporation may use the allotment to fund applications from those local
partnerships for programs in that State.
(3) A grantmaking entity may use funds to provide technical
assistance and training to appropriate persons relating to its
subgrants.
(c) Planning programs. (1) A State may use funds to make subgrants
to LEAs for planning school-based service-learning programs.
(2) If a State does not submit an application that meets the
requirements for an allotment grant under Sec. 2516.400, the
Corporation may use the allotment to fund applications from LEAs for
planning programs in that State.
(3) Authorized activities include paying the costs of--
(i) The salaries and benefits of service-learning coordinators as
defined in Sec. 2510.20 of this chapter; and
(ii) The recruitment, training, supervision, and placement of
service-learning coordinators who are participants in an AmeriCorps
program described in parts 2520 through 2524 of this chapter or who
receive AmeriCorps educational awards.
(d) Adult volunteer programs. (1) A State, Indian tribe, U.S.
territory, or grantmaking entity may use funds to make subgrants to
local partnerships described in Sec. 2516.110(c) to implement, operate,
or expand school-based programs involving adult volunteers to utilize
service-learning to improve the education of students.
(2) If a State does not submit an application that meets the
requirements for an allotment grant under Sec. 2516.400, the
Corporation may use the allotment to fund applications from those local
partnerships for adult volunteer programs in that State.
(e) Planning by Indian tribes and U.S. Territories. If the
Corporation makes a grant to an Indian tribe or a U.S. Territory to
plan school-based service-learning programs, the grantee may use the
funds for that purpose.
(f) Allowable expenses. An LEA, local partnership, or qualified
organization may use funds under this part for the Corporation share of
reasonable costs related to the supervision of participants, program
administration, transportation, insurance, evaluations, and other
reasonable expenses related to the funded activities.
Subpart C--Eligibility To Participate
Sec. 2516.300 Who may participate in a school-based service-learning
program?
Students who are enrolled in elementary or secondary schools on a
full-time or part-time basis may participate in school-based programs.
Sec. 2516.310 May private school students participate?
(a) Yes. To the extent consistent with the number of students in
the State or Indian tribe or in the school district of the LEA involved
who are enrolled in private nonprofit elementary or secondary schools,
the State, Indian tribe, or LEA must (after consultation with
appropriate private school representatives) make provision--
(1) For the inclusion of services and arrangements for the benefit
of those students so as to allow for the equitable participation of the
students in the programs under this part; and
(2) For the training of the teachers of those students so as to
allow for the equitable participation of those teachers in the programs
under this part.
(b)(1) If a State, Indian tribe, or LEA is prohibited by law from
providing for the participation of students or teachers from private
nonprofit schools as required by paragraph (a) of this section, or if
the Corporation determines that a State, Indian tribe, or LEA
substantially fails or is unwilling to provide for their participation
on an equitable basis, the Corporation will waive those requirements
and arrange for the provision of services to the students and teachers.
(2) Waivers will be subject to the consultation, withholding,
notice, and judicial review requirements of section 1017(b) (3) and (4)
of the Elementary and Secondary Education Act of 1965 (20 U.S.C.
2727(b)).
Subpart D--Application Contents
Sec. 2516.400 What must a State or Indian tribe include in an
application for a grant?
In order to apply for a grant from the Corporation under this part,
a State (SEA) or Indian tribe must submit the following:
(a) A three-year strategic plan, or a revision of a previously
approved three-year strategic plan, for promoting service-learning
through programs under this part. The application of a SEA must include
a description of how the SEA will coordinate its service-learning plan
with the State Plan under part 2513 of this chapter and with other
federally-assisted activities.
(b) A proposal containing the specific program, budget, and other
information specified by the Corporation in the grant application
package.
(c) Assurances that the applicant will--
(1) Keep such records and provide such information to the
Corporation with respect to the programs as may be required for fiscal
audits and program evaluation; and
(2) Comply with the nonduplication, nondisplacement, and grievance
procedure requirements of part 2540 of this chapter.
Sec. 2516.410 What must a grantmaking entity, local partnership, or
LEA include in an application for a grant?
In order to apply to the Corporation for a grant, a grantmaking
entity, local partnership, or LEA must submit the following:
(a) A detailed description of the proposed program goals and
activities. The application of a grantmaking entity must include--
(1) A description of how the applicant will coordinate its
activities with the State Plan under part 2513 of this chapter and with
other federally-assisted activities; and
(2) A description of how the program will be carried out in more
than one State.
(b) The specific program, budget, and other information specified
by the Corporation in the grant application package.
(c) Assurances that the applicant will--
(1) Keep such records and provide such information to the
Corporation with respect to the program as may be required for fiscal
audits and program evaluation;
(2) Prior to the placement of a participant, consult with the
appropriate local labor organization, if any, representing employees in
the area who are engaged in the same or similar work as that proposed
to be carried out by the program, to prevent the displacement and
protect the rights of those employees;
(3) Develop an age-appropriate learning component for participants
in the program that includes a chance for participants to analyze and
apply their service experiences; and
(4) Comply with the nonduplication, nondisplacement, and grievance
procedure requirements of part 2540 of this chapter.
(d) For a local partnership, an assurance that the LEA will serve
as the partnerships fiscal agent.
Sec. 2516.420 What must an LEA, local partnership, or qualified
organization include in an application for a subgrant?
In order to apply for a subgrant from an SEA, Indian tribe, or
grantmaking entity under this part, an applicant must include the
information required by the Corporation grantee.
Subpart E--Application Review
Sec. 2516.500 How does the Corporation review the merits of an
application?
(a) In reviewing the merits of an application submitted to the
Corporation under this part, the Corporation evaluates the quality,
innovation, replicability, and sustainability of the proposal on the
basis of the following criteria:
(1) Quality, as indicated by the extent to which--
(i) The program will provide productive meaningful, educational
experiences that incorporate service-learning methods;
(ii) The program will meet community needs and involve individuals
from diverse backgrounds (including economically disadvantaged youth)
who will serve together to explore the root causes of community
problems;
(iii) The principal leaders of the program will be well qualified
for their responsibilities;
(iv) The program has sound plans and processes for training,
technical assistance, supervision, quality control, evaluation,
administration, and other key activities; and
(v) The program will advance knowledge about how to do effective
and innovative community service and service-learning and enhance the
broader elementary and secondary education field.
(2) Replicability, as indicated by the extent to which the program
will assist others in learning from experience and replicating the
approach of the program.
(3) Sustainability, as indicated by the extent to which--
(i) An SEA or grantmaking entity applicant demonstrates the ability
and willingness to coordinate its activities with the State Plan under
part 2513 of this chapter and with other federally assisted activities;
(ii) The program will foster collaborative efforts among local
educational agencies, local government agencies, community based
agencies, businesses, and State agencies;
(iii) The program will enjoy strong, broad-based community support;
and
(iv) There is evidence that financial resources will be available
to continue the program after the expiration of the grant.
(b) The Corporation also gives priority to proposals that--
(1) Involve participants in the design and operation of the
program;
(2) Reflect the greatest need for assistance, such as programs
targeting low-income areas;
(3) Involve students from public and private schools serving
together;
(4) Involve students of different ages, races, genders,
ethnicities, abilities and disabilities, or economic backgrounds,
serving together;
(5) Are integrated into the academic program of the participants;
(6) Best represent the potential of service-learning as a vehicle
for education reform and school-to-work transition;
(7) Develop civic responsibility and leadership skills and
qualities in participants;
(8) Demonstrate the ability to achieve the goals of this part on
the basis of the proposal's quality, innovation, replicability, and
sustainability; or
(9) Address any other priority established by the Corporation for a
particular period.
(c) In reviewing applications submitted by Indian tribes and U.S.
Territories, the Corporation--
(1) May decide to approve only planning of school-based service-
learning programs; and
(2) Will set the amounts of grants in accordance with the
respective needs of applicants.
Sec. 2516.510 What happens if the Corporation rejects a State's
application for an allotment grant?
If the Corporation rejects a State's application for an allotment
grant under Sec. 2516.600 (b)(2) the Corporation will--
(a) Promptly notify the State of the reasons for the rejection;
(b) Provide the State with a reasonable opportunity to revise and
resubmit the application;
(c) Provide technical assistance, if necessary; and
(d) Promptly reconsider the resubmitted application and make a
decision.
Sec. 2516.520 How does a State, Indian tribe, or grantmaking entity
review the merits of an application?
In reviewing the merits of an application for a subgrant under this
part, a Corporation grantee must use the criteria and priorities in
Sec. 2516.500.
Subpart F--Distribution of Funds
Sec. 2516.600 How are funds for school-based service-learning programs
distributed?
(a) Of the amounts appropriated to carry out this part for any
fiscal year, the Corporation will reserve not more than three percent
for grants to Indian tribes and U.S. Territories to be allotted in
accordance with their respective needs.
(b) The Corporation will use t
FR Doc. 94-322 Corporation Grant Programs and Support and Investment Activities
he remainder of the funds
appropriated as follows:
(1) Competitive Grants. From 25 percent of the remainder, the
Corporation may make grants on a competitive basis to States, Indian
tribes, or grantmaking entities.
(2) Allotments to States. (i) From 37.5 percent of the remainder,
the Corporation will allot to each State an amount that bears the same
ratio to 37.5 percent of the remainder as the number of school-age
youth in the State bears to the total number of school-age youth of all
States.
(ii) From 37.5 percent of the remainder, the Corporation will allot
to each State an amount that bears the same ratio to 37.5 percent of
the remainder as the allocation to the State for the previous fiscal
year under Chapter 1 of Title I of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 2711 et seq.) bears to the allocations
to all States.
(iii) Notwithstanding other provisions of paragraph (b)(2) of this
section, no State will receive an allotment that is less than the
allotment the State received for fiscal year 1993 from the Commission
on National and Community Service. If the amount of funds made
available in a fiscal year is insufficient to make those allotments,
the Corporation will make additional funds available from the 25
percent described in paragraph (b)(1) of this section for that fiscal
year to make those allotments.
(3) For the purpose of paragraph (b) of this section, ``State''
means one of the 50 States, the District of Columbia, and the
Commonwealth of Puerto Rico.
(c) If a State or Indian tribe does not submit an application that
meets the requirements for approval under this part, the Corporation
(after making any grants to local partnerships or LEAs for activities
in nonparticipating States) may use its allotment for States and Indian
tribes with approved applications, as the Corporation determines
appropriate.
(d) Notwithstanding other provisions of this section, if less than
$20,000,000 is made available in any fiscal year to carry out this
part, the Corporation will make all grants to States and Indian tribes
on a competitive basis.
Subpart G--Funding Requirements
Sec. 2516.700 Are matching funds required?
(a) Yes. The Corporation share of the cost of carrying out a
program funded under this part may not exceed--
(1) Ninety percent of the total cost for the first year for which
the program receives assistance;
(2) Eighty percent of the total cost for the second year;
(3) Seventy percent of the total cost for the third year; and
(4) Fifty percent of the total cost for the fourth year and any
subsequent year.
(b) In providing for the remaining share of the cost of carrying
out a program, each recipient of assistance must provide for that share
through a payment in cash or in kind, fairly evaluated, including
facilities, equipment, or services, and may provide for that share
through State sources, local sources, or Federal sources (other than
funds made available under the national service laws).
(c) However, the Corporation may waive the requirements of
paragraph (b) of this section in whole or in part with respect to any
program in any fiscal year if the Corporation determines that the
waiver would be equitable due to a lack of available financial
resources at the local level.
Sec. 2516.710 Are there limits on the use of funds?
Yes. The following limits apply to funds made available under this
part:
(a)(1) The recipient of a direct grant from the Corporation may
spend no more than five percent of the grant funds on administrative
costs for any fiscal year.
(2) If a Corporation grantee makes a subgrant to an entity to carry
out a service-learning program, the Corporation grantee may determine
how the allowable administrative costs will be distributed between
itself and the subgrantee.
(b)(1) An SEA or Indian tribe must spend between ten and 15 percent
of the grant to build capacity through training, technical assistance,
curriculum development, and coordination activities.
(2) However, the Corporation may waive this requirement in order to
permit an SEA or a tribe to use between ten percent and 20 percent of
the grant funds to build capacity. To be eligible to receive the
waiver, the SEA or tribe must submit an application to the Corporation.
(c) Funds made available under this part may not be used to pay any
stipend, allowance, or other financial support to any participant in a
service-learning program under this part or part 2517 or 2519 of this
chapter except reimbursement for transportation, meals, and other
reasonable out-of-pocket expenses directly related to participation in
a program assisted under this part.
Sec. 2516.720 What is the length of each type of grant?
(a) One year is the maximum length of--
(1) A planning grant under Sec. 2516.200 (a), (c) or (f); and
(2) A grant to a local partnership for activities in a
nonparticipating State under Sec. 2516.200 (b) and (d).
(b) All other grants are for a period of up to three years, subject
to satisfactory performance and annual appropriations.
Sec. 2516.730 May an applicant submit multiple applications for the
same project?
No. The Corporation will reject an application if the application
describes a project proposed to be conducted using assistance requested
by the applicant and the project is already described in another
application pending before the Corporation.
Subpart H--Monitoring and Evaluation Requirements
Sec. 2516.800 What are the purposes of monitoring and evaluation?
(a) Monitoring is a continuous effort to assess performance and
improve quality. Evaluation is an assessment of program effectiveness
and outcomes at the end of a given period of time.
(b) Every monitoring and evaluation requirement serves one or more
of the following purposes:
(1) Ensuring quality programs.
(2) Examining the benefits of national and community service.
(3) Fulfilling legislative requirements.
Sec. 2516.810 By what standards will service-learning programs be
evaluated?
The Corporation will evaluate programs based on the following:
(a) The extent to which the program meets the objectives
established and agreed to by the grantee and the Corporation before the
grant award.
(b) The extent to which the program is cost-effective.
(c) Other criteria as determined and published by the Corporation.
Sec. 2516.820 What must grantees and subgrantees do to monitor and
evaluate the effectiveness of their programs?
Grantees and subgrantees must undertake the following activities:
(a) Monitor management effectiveness, the quality of services
provided, and the satisfaction of both participants and service
recipients. Monitoring should be a continuous process, allowing for
frequent feedback and quick correction of weaknesses. Monitoring
approaches such as community advisory councils, participant advisory
councils, peer reviews, quality control inspections, and service
recipient and participant surveys are encouraged.
(b) Track progress toward pre-established objectives. Objectives
must be established by programs and approved by the Corporation.
Programs must submit to the Corporation (or the Corporation grantee as
applicable) periodic performance reports and, as part of an annual
report, an annual performance report.
(c) Collect and submit to the Corporation (through the Corporation
grantee as applicable) the following data:
(1) The total number of participants in each program and basic
demographic characteristics of the participants including sex, age,
economic background, education level, ethnic group, disability
classification, and geographic region.
(2) Other information as required by the Corporation.
Sec. 2516.830 What must a Corporation grantee do to monitor and
evaluate the effectiveness of the programs of its subgrantees?
A Corporation grantee that makes subgrants must undertake the
following activities:
(a) Ensure that subgrantees comply with the requirements of
Sec. 2516.820.
(b) Track program performance in terms of progress toward pre-
established objectives; ensure that corrective action is taken when
necessary; and submit to the Corporation periodic performance reports
and, as part of an annual report, an annual performance report for each
subgrantee.
(c) Collect from programs and submit to the Corporation the
descriptive information required in Sec. 2516.820(c)(1).
Sec. 2516.840 Must grantees or subgrantees perform independent
evaluations?
No. An independent evaluation is not required but is permissible.
Sec. 2516.850 What will the Corporation do to evaluate the overall
success of the service-learning program?
(a) The Corporation will conduct independent evaluations. These
evaluations will consider the opinions of participants and members of
the communities where services are delivered. If appropriate, these
evaluations will compare participants with individuals who have not
participated in service-learning programs. These evaluations will--
(1) Study the extent to which service-learning programs as a whole
affect the involved communities;
(2) Determine the extent to which service-learning programs as a
whole increase academic learning of participants, enhance civic
education, and foster continued community involvement; and
(3) Determine the effectiveness of different program models.
(b) The Corporation will also determine by June 30, 1995, whether
outcomes of service-learning programs are defined and measured
appropriately, and the implications of the results from such a study
for authorized funding levels.
Sec. 2516.860 Will information on individual participants be kept
confidential?
(a) Yes. The Corporation will maintain the confidentiality of
information regarding individual participants that is acquired for the
purpose of the evaluations described in Sec. 2516.850. The Corporation
will disclose individual participant information only with the prior
written consent of the participant. However, the Corporation may
disclose aggregate participant information.
(b) Grantees and subgrantees under this part must comply with the
provisions of paragraph (a) of this section.
PART 2517--COMMUNITY-BASED SERVICE-LEARNING PROGRAMS
Subpart A--Grant Applications
Sec.
2517.100 Who may apply for a direct grant from the Corporation?
2517.110 Who may apply for a subgrant from a Corporation grantee?
Subpart B--Use of Grant Funds
2517.200 How may grant funds be used?
Subpart C--Eligibility to Participate
2517.300 Who may participate in a community-based service-learning
program?
Subpart D--Application Contents
2517.400 What must a State Commission or grantmaking entity include
in an application for a grant?
2517.410 What must a qualified organization include in an
application for a grant or a subgrant?
Subpart E--Application Review
2517.500 How is an application evaluated?
Subpart F--Distribution of Funds
2517.600 How are funds for community-based service-learning
programs distributed?
Subpart G--Funding Requirements
2517.700 Are matching funds required?
2517.710 Are there limits on the use of funds?
2517.720 What is the length of a grant?
2517.730 May an applicant submit multiple applications for the same
project?
Subpart H--Evaluation and Monitoring Requirements
2517.800 What are the evaluation and monitoring requirements for
community-based programs?
Authority: 42 U.S.C. 12501 et seq.
Subpart A--Grant Applications
Sec. 2517.100 Who may apply for a direct grant from the Corporation?
(a) The following entities may apply for a direct grant from the
Corporation:
(1) A State Commission established under part 2550 of this chapter.
(2) A grantmaking entity as defined in Sec. 2515.20 of this
chapter.
(3) A qualified organization as defined in Sec. 2515.20 of this
chapter.
(b) The types of grants for which each entity is eligible are
described in Sec. 2517.200 of this chapter.
Sec. 2517.110 Who may apply for a subgrant from a Corporation grantee?
Entities that may apply for a subgrant from a State Commission or
grantmaking entity are qualified organizations that have entered into a
partnership with one or more--
(a) Local educational agencies (LEAs);
(b) Other qualified organizations; or
(c) Both.
Subpart B--Use of Grant Funds
Sec. 2517.200 How may grant funds be used?
Funds under a community-based service-learning grant may be used
for the purposes described in this section.
(a) A State Commission or grantmaking entity may use funds--
(1) To make subgrants to qualified organizations described in
Sec. 2517.110 to implement, operate, expand, or replicate a community-
based service program that provides direct and demonstrable
educational, public safety, human, or environmental service by
participants, who must be school-age youth; and
(2) To provide training and technical assistance to qualified
organizations.
(b)(1) A qualified organization may use funds under a direct grant
or a subgrant to implement, operate, expand, or replicate a community-
based service program.
(2) If a qualified organization receives a direct grant, its
program must be carried out at sites in two or more States or be
particularly innovative.
Subpart C--Eligibility to Participate
Sec. 2517.300 Who may participate in a community-based service-
learning program?
School-age youth as defined in Sec. 2510.20 of this chapter may
participate in a community-based program.
Subpart D--Application Contents
Sec. 2517.400 What must a State Commission or grantmaking entity
include in an application for a grant?
(a) In order to apply for a grant from the Corporation under this
part, a State Commission or a grantmaking entity must submit the
following:
(1) A three-year strategic plan for promoting service-learning
through programs under this part. The plan must identify and describe
the community-based programs proposed to be carried out during the
first year.
(2) A proposal containing the specific program, budget, and other
information specified by the Corporation in the grant application
package.
(3) A description of how activities under the grant will be
coordinated with the State Plan under part 2513 of this chapter and
with other federally-assisted activities.
(4) Assurances that the applicant will--
(i) Keep such records and provide such information to the
Corporation with respect to the programs as may be required for fiscal
audits and program evaluation;
(ii) Comply with the nonduplication, nondisplacement, and grievance
procedure requirements of part 2540 of this chapter; and
(iii) Ensure that, prior to placing a participant in a program, the
entity carrying out the program will consult with the appropriate local
labor organization, if any, representing employees in the area in which
the program will be carried out that are engaged in the same or similar
work as the work proposed to be carried out by the program, to prevent
the displacement of those employees.
(b) In addition, a grantmaking entity must submit information
demonstrating that the entity will make grants for a program--
(1) To carry out activities in two or more States, under
circumstances in which those activities can be carried out more
efficiently through one program than through two or more programs; and
(2) To carry out the same activities, such as training activities
or activities related to exchanging information on service experiences,
through each of the projects assisted through the program.
Sec. 2517.410 What must a qualified organization include in an
application for a grant or a subgrant?
(a) In order to apply to the Corporation for a direct grant, a
qualified organization must submit the following:
(1) A three-year plan describing the goals and activities of the
proposed program;
(2) The specific program, budget, and other information specified
by the Corporation in the grant application package; and
(3) Assurances that the applicant will--
(i) Keep such records and provide such information to the
Corporation with respect to the program as may be required for fiscal
audits and program evaluation;
(ii) Comply with the nonduplication, nondisplacement, and grievance
procedure requirements of part 2540 of this chapter; and
(iii) Prior to placing a participant in the program, consult with
the appropriate local labor organization, if any, representing
employees in the area in which the program will be carried out who are
engaged in the same or similar work as the work proposed to be carried
out by the program, to prevent the displacement of those employees.
(b) In order to apply to a State Commission or a grantmaking entity
for a subgrant, a qualified organization must submit the following:
(1) A plan describing the goals and activities of the proposed
program; and
(2) Such specific program, budget, and other information as the
Commission or entity reasonably requires.
Subpart E--Application Review
Sec. 2517.500 How is an application evaluated?
In evaluating an application for a grant or a subgrant, the
Corporation, a State Commission, or a grantmaking entity will apply the
following criteria:
(a) The quality of the program proposed.
(b) The innovation of, and feasibility of replicating, the program.
(c) The sustainability of the program, based on--
(1) Strong and broad-based community support;
(2) Multiple funding sources or private funding; and
(3) Coordination with the State Plan under part 2513 of this
chapter and other federally-assisted activities.
(d) The quality of the leadership of the program, past performance
of the program, and the extent to which the program builds on existing
programs.
(e) The applicant's efforts--
(1) To recruit participants from among residents of the communities
in which projects would be conducted;
(2) To ensure that the projects are open to participants of
different ages, races, genders, ethnicities, abilities and
disabilities, and economic backgrounds; and
(3) To involve participants and community residents in the design,
leadership, and operation of the program.
(f) The extent to which projects would be located in areas that
are--
(1) Empowerment zones, redevelopment areas, or other areas with
high concentrations of low-income people; or
(2) Environmentally distressed.
Subpart F--Distribution of Funds
Sec. 2517.600 How are funds for community-based service-learning
programs distributed?
All funds are distributed by the Corporation through competitive
grants.
Subpart G--Funding Requirements
Sec. 2517.700 Are matching funds required?
(a) Yes. The Corporation share of the cost of carrying out a
program funded under this part may not exceed--
(1) Ninety percent of the total cost for the first year for which
the program receives assistance;
(2) Eighty percent of the total cost for the second year;
(3) Seventy percent of the total cost for the third year; and
(4) Fifty percent of the total cost for the fourth year and any
subsequent year.
(b) In providing for the remaining share of the cost of carrying
out a program, each recipient of assistance must provide for that share
through a payment in cash or in kind, fairly evaluated, including
facilities, equipment, or services, and may provide for that share
through State sources, local sources, or Federal sources (other than
funds made available under the national service laws).
(c) However, the Corporation may waive the requirements of
paragraph (b) of this section in whole or in part with respect to any
program in any fiscal year if the Corporation determines that the
waiver would be equitable due to lack of available financial resources
at the local level.
Sec. 2517.710 Are there limits on the use of funds?
Yes. The following limits apply to funds made available under this
part:
(a)(1) The recipient of a direct grant from the Corporation may
spend no more than five percent of the grant funds on administrative
costs for any fiscal year.
(2) If a Corporation grantee makes a subgrant to an entity to carry
out a service-learning program, the Corporation grantee may determine
how the allowable administrative costs will be distributed between
itself and the subgrantee.
(b) Funds made available under this part may not be used to pay any
stipend, allowance, or other financial support to any participant in a
service-learning program under this part or part 2516 or 2519 of this
chapter except reimbursement for transportation, meals, and other
reasonable out-of-pocket expenses directly related to participation in
a program assisted under this part.
Sec. 2517.720 What is the length of a grant?
A grant under this part is for a period of up to three years,
subject to satisfactory performance and annual appropriations.
Sec. 2517.730 May an applicant submit multiple applications for the
same project?
No. The Corporation will reject an application if the application
describes a project proposed to be conducted using assistance requested
by the applicant and the project is already described in another
application pending before the Corporation.
Subpart H--Evaluation and Monitoring Requirements
Sec. 2517.800 What are the evaluation and monitoring requirements for
community-based programs?
The monitoring and evaluation requirements for recipients of grants
and subgrants under part 2516 of this chapter, relating to school-based
service-learning programs, apply to recipients under this part.
PART 2518--SERVICE-LEARNING CLEARINGHOUSE
Sec.
2518.100 What is the purpose of a Service-Learning Clearinghouse?
2518.110 What are the functions of a Service-Learning
Clearinghouse?
Authority: 42 U.S.C. 12501 et seq.
Sec. 2518.100 What is the purpose of a Service-Learning Clearinghouse?
The Corporation will provide financial assistance, from funds
appropriated to carry out the activities listed under parts 2530
through 2533 of this chapter, to public or private nonprofit
organizations that have extensive experience with service-learning,
including use of adult volunteers to foster service-learning, to
establish a clearinghouse, which will carry out activities, either
directly or by arrangement with another such organization, with respect
to information about service-learning.
Sec. 2518.110 What are the functions of a Service-Learning
Clearinghouse?
An organization that receives assistance from funds appropriated to
carry out the activities listed under parts 2530 through 2533 of this
chapter may--
(a) Assist entities carrying out State or local service-learning
programs with needs assessments and planning;
(b) Conduct research and evaluations concerning service-learning;
(c)(1) Provide leadership development and training to State and
local service-learning program administrators, supervisors, project
sponsors, and participants; and
(2) Provide training to persons who can provide the leadership
development and training described in paragraph (c)(1) of this section;
(d) Facilitate communication among entities carrying out service-
learning programs and participants in such programs;
(e) Provide information, curriculum materials, and technical
assistance relating to planning and operation of service-learning
programs, to States and local entities eligible to receive financial
assistance under this title;
(f) Provide information regarding methods to make service-learning
programs accessible to individuals with disabilities;
(g)(1) Gather and disseminate information on successful service-
learning programs, components of such successful programs, innovative
youth skills curricula related to service-learning, and service-
learning projects; and
(2) Coordinate the activities of the Clearinghouse with appropriate
entities to avoid duplication of effort;
(h) Make recommendations to State and local entities on quality
controls to improve the quality of service-learning programs;
(i) Assist organizations in recruiting, screening, and placing
service-learning coordinators; and
(j) Carry out such other activities as the Chief Executive Officer
determines to be appropriate.
PART 2519--HIGHER EDUCATION INNOVATIVE PROGRAMS FOR COMMUNITY
SERVICE
Subpart A--Purpose and Eligibility to Apply
Sec.
2519.100 What is the purpose of the Higher Education programs?
2519.110 Who may apply for a grant?
Subpart B--Use of Grant Funds
2519.200 How may grant funds be used?
Subpart C--Participant Requirements and Benefits
2519.300 Who may participate in a Higher Education program?
2519.310 Is a participant eligible to receive an AmeriCorps
educational award?
2519.320 May a program provide a stipend to a participant?
Subpart D--Application Contents
2519.400 What must an applicant include in an application for a
grant?
2519.410 Are there any limitations on the use of funds?
2519.420 How many years of assistance may an eligible applicant
seek?
Subpart E--Application Review
2519.500 How does the Corporation review the merits of an
application?
Subpart F--Distribution of Funds
2519.600 How are funds for Higher Education programs distributed?
Subpart G--Funding Requirements
2519.700 Are matching funds required?
2519.710 Are there limits on the use of funds?
2519.720 What is the length of a grant?
2519.730 May an applicant submit multiple applications for the same
project?
Subpart H--Monitoring and Evaluation Requirements
2519.800 What are the monitoring and evaluation requirements for
Higher Education programs?
Authority: 42 U.S.C. 12501 et seq.
Subpart A--Purpose and Eligibility to Apply
Sec. 2519.100 What is the purpose of the Higher Education programs?
The purpose of the higher education innovative programs for
community service is to expand participation in community service by
supporting high-quality, sustainable community service programs carried
out through institutions of higher education, acting as civic
institutions helping to meet the educational, public safety, human, and
environmental needs of neighboring communities.
Sec. 2519.110 Who may apply for a grant?
The following entities may apply for a grant from the Corporation:
(a) An institution of higher education.
(b) A consortium of institutions of higher education.
(c) A partnership comprised of one or more public or private
nonprofit organizations and one or more institutions of higher
education.
Subpart B--Use of Grant Funds
Sec. 2519.200 How may grant funds be used?
Funds under a higher education program grant may be used for the
following activities:
(a) Enabling an institution of higher education or partnership to
create or expand an organized community service program that--
(1) Engenders a sense of social responsibility and commitment to
the community in which the institution is located; and
(2) Provides projects for participants, as described in
Sec. 2519.300.
(b) Supporting student-initiated and student-designed community
service projects.
(c) Strengthening the leadership and instructional capacity of
teachers at the elementary, secondary, and postsecondary levels with
respect to service-learning by--
(1) Including service-learning as a key component of the preservice
teacher education of the institution; and
(2) Encouraging the faculty of the institution to use service-
learning methods throughout the curriculum.
(d) Facilitating the integration of community service carried out
under the grant into academic curricula, including integration of
clinical programs into the curriculum for students in professional
schools, so that students may obtain credit for their community service
projects.
(e) Supplementing the funds available to carry out work-study
programs under part C of title IV of the Higher Education Act of 1965
(42 U.S.C. 2751 et seq.) to support service-learning and community
service.
(f) Strengthening the service infrastructure within institutions of
higher education in the United States that supports service-learning
and community service.
(g) Providing for the training of teachers, prospective teachers,
related education personnel, and community leaders in the skills
necessary to develop, supervise, and organize service-learning.
Subpart C--Participant Requirements and Benefits
Sec. 2519.300 Who may participate in a Higher Education program?
Students, faculty, administration and staff of an institution, as
well as residents of the community may participate. For the purpose of
this part, the term ``student'' means an individual who is enrolled in
an institution of higher education on a full-time or part-time basis.
Sec. 2519.310 Is a participant eligible to receive an AmeriCorps
educational award?
In general, no. However, certain positions in programs funded under
this part may qualify as approved AmeriCorps positions. The Corporation
will establish eligibility requirements for these positions as a part
of the application package.
Sec. 2519.320 May a program provide a stipend to a participant?
(a) A program may provide a stipend for service activities for a
participant who is a student if the provision of stipends is reasonable
in the context of a program's design and objectives.
(1) A program may not provide a stipend to a student who is
receiving academic credit for service activities unless the service
activities require a substantial time commitment beyond that expected
for the credit earned.
(2) A participant who is earning money for service activities under
the work-study program described in Sec. 2519.200(e) may not receive an
additional stipend from funds under this part.
(b) Consistent with the AmeriCorps program requirements in
Sec. 2522.100 of this chapter, a program with participants serving in
approved full-time AmeriCorps positions must ensure the provision of a
living allowance and, if necessary, health care and child care to those
participants.
Subpart D--Application Contents
Sec. 2519.400 What must an applicant include in an application for a
grant?
In order to apply to the Corporation for a grant, an applicant must
submit the following:
(a) A plan describing the goals and activities of the proposed
program.
(b) The specific program, budget, and other information and
assurances specified by the Corporation in the grant application
package.
(c) Assurances that the applicant will--
(1) Keep such records and provide such information to the
Corporation with respect to the program as may be required for fiscal
audits and program evaluation;
(2) Comply with the nonduplication, nondisplacement, and grievance
procedure requirements of part 2540 of this chapter;
(3) Prior to the placement of a participant in the program, consult
with the appropriate local labor organization, if any, representing
employees in the area who are engaged in the same or similar work as
the work proposed to be carried out by the program, to prevent the
displacement and protect the rights of those employees; and
(4) Comply with any other assurances that the Corporation deems
necessary.
Sec. 2519.410 Are there any limitations on the use of funds?
Not more that five percent of funds awarded under this part in any
fiscal year may be used for administrative costs.
Sec. 2519.420 How many years of assistance may an eligible applicant
seek?
Grants may be for up to three years, subject to satisfactory
performance and annual appropriations.
Subpart E--Application Review
Sec. 2519.500 How does the Corporation review the merits of an
application?
(a) The Corporation will evaluate the merits of an application
submitted under this part on the basis of the quality, innovation,
replicability, and sustainability of the proposed program and such
other criteria as the Corporation establishes in an application
package.
(b) In addition, in reviewing an application submitted under this
part, the Corporation will give a proposed program increased priority
for each characteristic described in paragraphs (b)(1) through (7) of
this section. Priority programs--
(1) Demonstrate the commitment of the institution of higher
education, other than by demonstrating the commitment of its students,
to supporting the community service projects carried out under the
program;
(2) Specify how the institution will promote faculty,
administration, and staff participation in the community service
projects;
(3) Specify the manner in which the institution will provide
service to the community through organized programs, including, where
appropriate, clinical programs for students in professional schools;
(4) Describe any partnership that will participate in the community
service projects, such as a partnership comprised of the institution, a
student organization, a community-based agency, a local government
agency, or a nonprofit entity that serves or involves school-age youth
or older adults;
(5) Demonstrate community involvement in the development of the
proposal;
(6) Specify that the institution will use funds under this part to
strengthen the infrastructure in institutions of higher education; or
(7) With respect to projects involving delivery of service, specify
projects that involve leadership development of school-age youth.
(c) In addition, the Corporation may designate additional
priorities in an application package that will be used in selecting
programs.
Subpart F--Distribution of Funds
Sec. 2519.600 How are funds for Higher Education programs distributed?
All funds under this part are distributed by the Corporation
through grants.
Subpart G--Funding Requirements
Sec. 2519.700 Are matching funds required?
(a) Yes. The Corporation share of the cost of carrying out a
program funded under this part may not exceed 50 percent.
(b) In providing for the remaining share of the cost of carrying
out a program, each recipient of assistance must provide for that share
through a payment in cash or in kind, fairly evaluated, including
facilities, equipment, or services, and may provide for that share
through State sources, local sources, or Federal sources (other than
funds made available under the national service laws).
(c) However, the Corporation may waive the requirements of
paragraph (b) of this section in whole or in part with respect to any
program in any fiscal year if the Corporation determines that the
waiver would be equitable due to lack of available financial resources
at the local level.
Sec. 2519.710 Are there limits on the use of funds?
Yes. The recipient of a grant under this part may spend no more
than five percent of the grant funds for any fiscal year on
administrative costs.
Sec. 2519.720 What is the length of a grant?
A grant under this part is for a period of up to three years,
subject to satisfactory performance and annual appropriations.
Sec. 2519.730 May an applicant submit multiple applications for the
same project?
No. The Corporation will reject an application if the application
describes a project proposed to be conducted using assistance requested
by the applicant and the project is already described in another
application pending before the Corporation.
Subpart H--Monitoring and Evaluation Requirements
Sec. 2519.800 What are the monitoring and evaluation requirements for
Higher Education programs?
The monitoring and evaluation requirements for recipients of grants
and subgrants under part 2516 of this chapter, relating to school-based
service-learning programs, apply to recipients under this part.
PART 2520--PURPOSES AND DEFINITIONS: AMERICORPS PROGRAMS
Sec.
2520.10 What is the purpose of this part?
2520.20 What types of service activities are allowable for programs
supported under parts 2521 through 2524 of this chapter?
2520.30 Are there any activities that are prohibited?
2520.40 Definitions.
Authority: 42 U.S.C. 12501 et seq.
Sec. 2520.10 What is the purpose of this part?
The purpose of this part is to describe the AmeriCorps grant
program, including the manner in which eligible applicants may apply
for funding. AmeriCorps programs must address educational, public
safety, human, or environmental needs and provide AmeriCorps
educational awards to eligible participants.
Sec. 2520.20 What types of service activities are allowable for
programs supported under parts 2521 through 2524 of this chapter?
(a) The service must either provide a direct benefit to the
community where it is performed, or involve the supervision of
participants or volunteers whose service provides a direct benefit to
the community where it is performed. Moreover, the approved AmeriCorps
activities must result in a specific identifiable service or
improvement that otherwise would not be provided with existing funds or
volunteers and that does not duplicate the routine functions of workers
or displace paid employees. Programs must develop service opportunities
that are appropriate to the skill levels of participants and that
provide a demonstrable, identifiable benefit that is valued by the
community.
(b) In certain circumstances, some activities may not provide a
direct benefit to the communities in which service is performed. Such
activities may include, but are not limited to, clerical work and
research. However, a participant may engage in such activities on his
or her own time or if the performance of the activity is incidental to
the participant's provision of service that does provide a direct
benefit to the community in which the service is performed.
Sec. 2520.30 Are there any activities that are prohibited?
Yes. Some activities are prohibited altogether. Prohibited
activities may not be performed by participants in the course of their
duties, at the request of program staff, or in a manner that would
associate the activities with the AmeriCorps program or the
Corporation. These activities include:
(a) Any effort to influence legislation, as prohibited under
section 501(c) of the Internal Revenue Code of 1986 (26 U.S.C. 501(c));
(b) Organizing protests, petitions, boycotts, or strikes;
(c) Assisting, promoting or deterring union organizing;
(d) Engaging in partisan political activities, or other activities
designed to influence the outcome of an election to any public office;
(e) Engaging in religious instruction, conducting worship services,
providing instruction as part of a program that includes mandatory
religious education or worship, constructing or operating facilities
devoted to religious instruction or worship, maintaining facilities
primarily or inherently devoted to religious instruction or worship, or
engaging in any form of religious proselytization;
(f) Providing a direct benefit to--
(1) A business organized for profit;
(2) A labor union;
(3) A partisan political organization;
(4) A nonprofit organization that fails to comply with the
restrictions contained in section 501(c) of the Internal Revenue Code
of 1986; and
(5) An organization engaged in the religious activities described
in paragraph (e) of this section, unless Corporation assistance is not
used to support those religious activities; and
(g) Such other activities as the Corporation may prohibit.
Sec. 2520.40 Definitions.
AmeriCorps Program. The term AmeriCorps program means any program,
including VISTA and the National Civilian Community Corps, that
provides AmeriCorps educational awards in exchange for substantial
full-or part-time service.
PART 2521--ELIGIBLE AMERICORPS PROGRAM APPLICANTS AND TYPES OF
GRANTS AVAILABLE FOR AWARD
Sec.
2521.10 Who may apply to receive an AmeriCorps grant?
2521.20 What types of AmeriCorps program grants are available for
award?
2521.30 How will AmeriCorps program grants be awarded?
Authority: 42 U.S.C. 12501 et seq.
Sec. 2521.10 Who may apply to receive an AmeriCorps grant?
(a) States (including Territories), subdivisions of States, Indian
tribes, public or private nonprofit organizations (including labor
organizations), and institutions of higher education are eligible to
apply for AmeriCorps grants. The Corporation may also enter into
agreements with other Federal agencies as described in part 2523 of
this chapter.
(b) In addition, eligible applicants must meet the following
specific requirements:
(1) The fifty States, the District of Columbia and Puerto Rico must
first receive Corporation authorization for the use of a State
Commission or alternative administrative or transitional entity
pursuant to 45 CFR part 2550; and
(2) Only Federal agencies that are cabinet-level departments or
independent agencies are eligible to receive an AmeriCorps grant;
bureaus, divisions, and local and regional offices of such departments
and agencies may only apply through the central department or agency.
Sec. 2521.20 What types of AmeriCorps program grants are available for
award?
The Corporation may make the following types of grants to eligible
applicants. The requirements of this section will also apply to any
State or other applicant receiving assistance under this part that
proposes to conduct a grant program using the assistance to support
other national or community service programs.
(a) Planning grants.--(1) Purpose. The purpose of a planning grant
is to assist an applicant in completing the planning necessary to
implement a sound concept that has already been developed.
(2) Eligibility. (i) States, Territories, and Federal agencies may
apply to the Corporation for planning grants.
(ii) Subdivisions of States, Indian Tribes, public or private
nonprofit organizations (including labor organizations), and
institutions of higher education may apply either to a State or
directly to the Corporation for planning grants.
(3) Duration. A planning grant will be negotiated for a term not to
exceed one year.
(b) Operational grants.--(1) Purpose. The purpose of an operational
grant is to fund an organization that is ready to implement a fully
developed plan for a new or expanded program. An operational grant may
include a short planning period if necessary to implement a program.
(2) Eligibility. (i) States, Territories and Federal agencies may
apply to the Corporation for operational grants, including AmeriCorps
educational awards.
(ii) Subdivisions of States, Indian Tribes, public or private
nonprofit organizations (including labor organizations), and
institutions of higher education may apply either to a State or
directly to the Corporation for operational grants including AmeriCorps
educational awards. The Corporation may limit the categories of
applicants eligible to apply directly to the Corporation for assistance
under this subsection consistent with its National priorities.
(3) Duration. An operational grant will be negotiated for a term
not to exceed three years. Within a three-year term, renewal funding
will be contingent upon periodic assessment of program quality,
progress to date, and availability of Congressional appropriations.
(c) AmeriCorps educational awards only.--(1) Purpose. The purpose
of these awards is to provide AmeriCorps educational awards to programs
that are not receiving or applying to the Corporation for program
assistance but that meet the criteria for approved AmeriCorps
positions, and desire to provide an AmeriCorps educational award to
participants serving in approved positions.
(2) Eligibility. (i) States and Territories may apply to the
Corporation for AmeriCorps educational awards only.
(ii) Subdivisions of States, Indian Tribes, public or private
nonprofit organizations (including labor organizations), institutions
of higher education, and Federal agencies may apply directly to the
Corporation for AmeriCorps educational awards only.
(d) Training, technical assistance and other special grants.--(1)
Purpose. The purpose of these grants is to ensure broad access to
AmeriCorps programs for all Americans, including those with
disabilities; support disaster relief efforts; assist efforts to secure
private support for programs through challenge grants; and ensure
program quality by supporting technical assistance and training
programs.
(2) Eligibility. Eligibility varies and is detailed under
``Technical Assistance and Other Special Grants.''
(3) Duration. Grants will be negotiated for a renewable term of up
to three years.
Sec. 2521.30 How will AmeriCorps program grants be awarded?
In any fiscal year, the Corporation will award AmeriCorps program
grants as follows:
(a) Grants to State applicants. (1) One-third of the funds
available under this part and a corresponding allotment of AmeriCorps
educational awards, as specified by the Corporation, will be
distributed according to a population-based formula to States
(including Puerto Rico and the District of Columbia) that have
applications approved by the Corporation.
(2) At least one-third of funds available under this part and an
appropriate number of AmeriCorps awards, as determined by the
Corporation, will be awarded to States on a competitive basis. In order
to receive these funds, a State must receive funds under paragraph
(a)(1) of this section in the same fiscal year.
(3) In making subgrants with funds awarded by formula or
competition under paragraphs (a) (1) or (2) of this section, a State
must:
(i) Provide a description of the process used to select programs
for funding including a certification that the State or other entity
used a competitive process and criteria that were consistent with the
selection criteria in Sec. 2522.410 of this chapter. In making such
competitive selections, the State must ensure the equitable allocation
within the State of assistance and approved AmeriCorps positions
provided under this subtitle to the State taking into consideration
such factors as the location of the programs applying to the State,
population density, and economic distress;
(ii) Provide a written assurance that not less than 60 percent of
the assistance provided to the State will be used to make grants in
support of AmeriCorps programs other than AmeriCorps programs supported
by the State or a State agency. The Corporation may permit a State to
deviate from this percentage if the State demonstrates that it did not
receive a sufficient number of acceptable applications; and
(iii) Ensure that a minimum of 50 percent of funds going to the
State will be used for programs that operate in the areas of need and
that place a priority on recruiting participants who are residents in
high need areas, or on Federal or other public lands. The Corporation
may waive this requirement for an individual State if at least 50
percent of the total amount of assistance to all States will be used
for such programs.
(b) Grants to applicants other than States. (1) One percent of
available funds will be distributed to the U.S. Territories\1\ that
have applications approved by the Corporation according to a
population-based formula.\2\
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\1\The United States Virgin Islands, Guam, American Samoa, the
Commonwealth of the Northern Mariana Islands, and Palau (until such
time as the Compact of Free Association with Palau is ratified).
\2\The amount allotted as a grant to each such territory or
possession is equal to the ratio of each such Territory's population
to the population of all such territories multiplied by the amount
of the one percent set-aside.
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(2) One percent of available funds will be reserved for
distribution to Indian tribes on a competitive basis.
(3) The Corporation will use any funds available under this part
remaining after the award of the grants described in paragraphs (a) and
(b) (1) and (2) of this section to make direct competitive grants to
subdivisions of States, Indian tribes, public or private nonprofit
organizations (including labor organizations), institutions of higher
education, and Federal agencies. No more than one-third of these
remaining funds may be awarded to Federal agencies.
(c) Allocation of AmeriCorps educational awards only. The
Corporation will determine on an annual basis the appropriate number of
educational awards to provide eligible applicants who have not applied
for program assistance.
(d) Effect States' or Territories' failure to apply. If a State or
U.S. Territory does not apply for or fails to give adequate notice of
its intent to apply for a formula-based grant as announced by the
Corporation and published in applications and the Notice of Funds
Availability, the Corporation will use the amount of that State's
allotment to make grants to eligible entities within that State or
Territory to carry out AmeriCorps programs in that State or Territory.
Any funds remaining from that State's allotment after making such
grants will be reallocated to the States, Territories, and Indian
tribes with approved AmeriCorps applications at the Corporation's
discretion.
(e) Effect of rejection of State application. If a State's
application for a formula-based grant is ultimately rejected by the
Corporation pursuant to Sec. 2522.320 of this chapter, the State's
allotment will be available for redistribution by the Corporation to
the States, Territories, and Indian Tribes with approved AmeriCorps
applications as the Corporation deems appropriate.
(f) The Corporation will make grants for training, technical
assistance and other special programs described in part 2524 of this
chapter at the Corporation's discretion.
(g) Matching funds.--(1) Requirements. In addition the matching
requirements for participant benefits specified in Sec. 2522.240(b)(5)
of this chapter, the Federal share of the cost of carrying out an
AmeriCorps program that receives the assistance under parts 2521
through 2524 of this chapter, whether the assistance is provided
directly or as a subgrant from the original recipient of the
assistance, may not exceed 75 percent of such cost.
(2) Calculation. In providing for the remaining share of the cost
of carrying out an AmeriCorps program, the program--
(i) Must provide for its share through a payment in cash or in
kind, fairly evaluated, including facilities, equipment, or services;
and
(ii) May provide for its share through State sources, local
sources, or other Federal sources (other than funds made available by
the Corporation).
(3) Waiver. The Corporation reserves the right to waive, in whole
or in part, the requirements of paragraph (g)(1) of this section.
(h) Administrative costs. (1) Grants or transfers of funds made
under this part are subject to the five percent limitation on
administrative costs specified in Sec. 2540.110 of this chapter.
(2) Rules on use. States or other grantmaking entities that make
subgrants to programs may retain no more than one-half of the five
percent maximum administrative costs allowed for each Corporation
grant.
PART 2522--AMERICORPS PARTICIPANTS, PROGRAMS, AND APPLICANTS
Subpart A--Minimum Requirements and Program Types
Sec.
2522.100 What are the minimum requirements that every AmeriCorps
program, regardless of type, must meet?
2522.110 What types of AmeriCorps programs are eligible to compete
for AmeriCorps grants?
Subpart B--Participant Eligibility, Requirements and Benefits
2522.200 What are the eligibility requirements for AmeriCorps
participants?
2522.210 How are AmeriCorps participants recruited and selected?
2522.220 What are the required terms of service for AmeriCorps
participants, and may they serve for more than one term?
2522.230 Under what circumstances may AmeriCorps participants be
released from completing a term of service, and what are the
consequences?
2522.240 What benefits do AmeriCorps participants serving in
approved AmeriCorps positions receive?
2522.250 What other benefits do AmeriCorps participants serving in
approved AmeriCorps positions receive?
Subpart C--Application Requirements
2522.300 What are the application requirements for AmeriCorps
program grants?
2522.310 What are the application requirements for AmeriCorps
educational awards only?
2522.320 May an applicant submit more than one application to the
Corporation for the same program at the same time?
Subpart D--Selection of AmeriCorps Programs
2522.400 How will the basic selection criteria be applied?
2522.410 What are the basic selection criteria for AmeriCorps
programs?
2522.420 Can a State's application for formula funds be rejected?
Subpart E--Monitoring and Evaluation Requirements
2522.500 What are the purposes of monitoring and evaluation?
2522.510 How will individual AmeriCorps programs be evaluated?
2522.520 What types of activities will programs be required to
undertake in order to monitor and evaluate their effectiveness?
2522.530 What types of activities will States or grantmaking
entities be required to undertake in order to monitor and evaluate
the effectiveness of their subgrantees?
2522.540 Are programs or States/grantmaking entities required to
perform independent evaluations?
2522.550 What types of activities will the Corporation be required
to undertake in order to evaluate the overall success of the
AmeriCorps programs?
2522.560 Will information on individual participants be kept
confidential?
Authority: 42 U.S.C. 12501 et seq.
Subpart A--Minimum Requirements and Program Types
Sec. 2522.100 What are the minimum requirements that every AmeriCorps
program, regardless of type, must meet?
Although a wide range of programs may be eligible to apply for and
receive support from the Corporation, all AmeriCorps programs must meet
certain minimum program requirements. These requirements apply
regardless of whether a program is supported directly by the
Corporation or through a subgrant. All AmeriCorps programs must:
(a) Address educational, public safety, human, or environmental
needs, and provide a direct and demonstrable benefit that is valued by
the community in which the service is performed;
(b) Perform projects that are designed, implemented, and evaluated
with extensive and broad-based local input, including consultation with
representatives from the community served, participants (or potential
participants) in the program, community-based agencies with a
demonstrated record of experience in providing services, and local
labor organizations representing employees of project sponsors (if such
entities exist in the area to be served by the program);
(c) Obtain, in the case of a program that also proposes to serve as
the sponsor, the written concurrence of any local labor organization
representing employees of the project sponsors who are engaged in the
same or substantially similar work as that proposed to be carried out
by the AmeriCorps participant;
(d) Establish and provide outcome objectives, including a strategy
for achieving these objectives, upon which self-assessment and
Corporation- assessment of progress can rest. Such assessment will be
used to help determine the extent to which the program has had a
positive impact:
(1) On communities and persons served by the projects performed by
the program;
(2) On participants who take part in the projects; and
(3) In such other areas as the program or Corporation may specify;
(e) Strengthen communities and encourage mutual respect and
cooperation among citizens of different races, ethnicities,
socioeconomic backgrounds, educational levels, both men and women and
individuals with disabilities;
(f) Agree to seek actively to include participants from the
communities in which projects are conducted, as well as individuals of
different races and ethnicities, socioeconomic backgrounds, educational
levels, both men and women as well as individuals with disabilities
unless a program design requires emphasizing the recruitment of
participants who share a specific characteristic or background. In no
case may a program violate the nondiscrimination, nonduplication and
nondisplacement rules governing participant selection described in part
2540 of this chapter. In addition, programs are encouraged to
establish, if consistent with the purposes of the program, an
intergenerational component that combines students, out-of-school
youths, and older adults as participants;
(g)(1) Determine the projects in which participants will serve and
establish minimum qualifications that individuals must meet to be
eligible to participate in the program; these qualifications may vary
based on the specific tasks to be performed by participants. Regardless
of the educational level or background of participants sought, programs
are encouraged to select individuals who posses leadership potential
and a commitment to the goals of the AmeriCorps program. In any case,
programs must select participants in a non-partisan, non-political,
non-discriminatory manner, ensuring fair access to participation. In
addition, programs are required to ensure that they do not displace any
existing paid employees as provided in part 2540 of this chapter. To
this end, programs may not select any prospective participant who is or
was previously employed by a prospective project sponsors within six
months of the time of enrollment in the program.
(2) In addition, all programs are required to comply with any pre-
service orientation or training period requirements established by the
Corporation to assist in the selection of motivated participants.
Finally, all programs must agree to select a percentage (to be
determined by the Corporation) of the participants for the program from
among prospective participants recruited by the Corporation or State
Commissions under part 2532 of this chapter. The Corporation may also
specify a minimum percentage of participants to be selected from the
national leadership pool established under Sec. 2522.120. The
Corporation may vary either percentage for different types of
AmeriCorps programs;
(h) Provide reasonable accommodation, including auxiliary aids and
services (as defined in section 3(1) of the Americans with Disabilities
Act of 1990 (42 U.S.C. 12102(1))) based on the individualized need of a
participant who is a qualified individual with a disability (as defined
in section 101(8) of such Act (42 U.S.C. 12111(8)). For the purpose of
complying with this provision, AmeriCorps programs may apply for
additional financial assistance from the Corporation pursuant to
Sec. 2524.50 of this chapter;
(i) Use service experiences to help participants achieve the skills
and education needed for productive, active citizenship, including the
provision, if appropriate, of structured opportunities for participants
to reflect on their service experiences. In addition, all programs must
encourage every participant who is eligible to vote to register prior
to completing a term of service;
(j) Provide participants in the program with the training, skills,
and knowledge necessary to perform the tasks required in their
respective projects, including, if appropriate, specific training in a
particular field and background information on the community, including
why the service projects are needed;
(k) Provide support services--
(1) To participants who are completing a term of service and making
the transition to other educational and career opportunities; and
(2) To those participants who are school dropouts in order to
assist them in earning the equivalent of a high school diploma;
(l) Ensure that participants serving in approved AmeriCorps
positions receive the living allowance and other benefits described in
Secs. 2521.240 through 2521.250 of this chapter, including a living
allowance and other benefits;
(m) Describe the manner in which the AmeriCorps educational awards
will be apportioned among individuals serving in the program. If a
program proposes to provide such benefits to less than 100 percent of
the participants in the program, the program must provide a compelling
rationale for determining which participants will receive the benefits
and which participants will not. AmeriCorps programs are strongly
encouraged to offer alternative post-service benefits to participants
who will not receive AmeriCorps educational awards;
(n) Agree to identify the program, through the use of logos, common
application materials, and other means, as part of a larger national
effort (to be specified by the Corporation) and to participate in other
activities such as common opening ceremonies (including the
administration of a national oath or affirmation), service days, and
conferences designed to promote a national identity for all AmeriCorps
programs and participants, including those participants not receiving
AmeriCorps educational awards. This provision does not preclude an
AmeriCorps program from continuing to use its own name as the primary
identification, or from using its name, logo, or other identifying
materials on uniforms or other items;
(o) Agree to begin operations at such times as the Corporation may
reasonably require and to comply with any restrictions the Corporation
may establish as to the length of time (subsequent to the starting
date(s) of a program) that the program may take to fill an approved
AmeriCorps position left vacant due to attrition;
(p) Prior to receiving Corporation support, comply with all
evaluation procedures specified by the Corporation, as explained in
Secs. 2522.500 through 2522.560;
(q) In the case of a program receiving funding directly from the
Corporation, consult with and coordinate activities with the State
Commission for the State in which the program operates; and
(r) Address any other requirements as specified by the Corporation.
Sec. 2522.110 What types of AmeriCorps programs are eligible to
compete for AmeriCorps grants?
Types of AmeriCorps programs eligible to compete for AmeriCorps
grants include the following:
(a) Specialized skills programs. (1) A service program that is
targeted to address specific educational, public safety, human, or
environmental needs and that--
(i) Recruits individuals with special skills or provides
specialized pre-service training to enable participants to be placed
individually or in teams in positions in which the participants can
meet such needs; and
(ii) If consistent with the purposes of the program, brings
participants together for additional training and other activities
designed to foster civic responsibility, increase the skills of
participants, and improve the quality of the service provided.
(2) A preprofessional training program in which students enrolled
in an institution of higher education--
(i) Receive training in specified fields, which may include classes
containing service-learning;
(ii) Perform service related to such training outside the classroom
during the school term and during summer or other vacation periods; and
(iii) Agree to provide service upon graduation to meet educational,
public safety, human, or environmental needs related to such training.
(3) A professional corps program that recruits and places qualified
participants in positions--
(i) As teachers, nurses and other health care providers, police
officers, early childhood development staff, engineers, or other
professionals providing service to meet educational, public safety,
human, or environmental needs in communities with an inadequate number
of such professionals;
(ii) That may include a salary in excess of the maximum living
allowance authorized in Sec. 2522.240(b)(2); and
(iii) That are sponsored by public or private nonprofit employers
who agree to pay 100 percent of the salaries and benefits (other than
any AmeriCorps educational award from the National Service Trust) of
the participants.
(b) Specialized service programs. (1) A community service program
designed to meet the needs of rural communities, using teams or
individual placements to address the development needs of rural
communities and to combat rural poverty, including health care,
education, and job training.
(2) A program that seeks to eliminate hunger in communities and
rural areas through service in projects--
(i) Involving food banks, food pantries, and nonprofit
organizations that provide food during emergencies;
(ii) Involving the gleaning of prepared and unprepared food that
would otherwise be discarded as unusable so that the usable portion of
such food may be donated to food banks, food pantries, and other
nonprofit organizations;
(iii) Seeking to address the long-term causes of hunger through
education and the delivery of appropriate services; or
(iv) Providing training in basic health, nutrition, and life skills
necessary to alleviate hunger in communities and rural areas.
(3) A program in which economically disadvantaged individuals who
are between the ages of 16 and 24 years of age, inclusive, are provided
with opportunities to perform service that, while enabling such
individuals to obtain the education and employment skills necessary to
achieve economic self-sufficiency, will help their communities meet--
(i) The housing needs of low-income families and the homeless; and
(ii) The need for community facilities in low-income areas.
(c) Community-development programs. (1) A community corps program
that meets educational, public safety, human, or environmental needs
and promotes greater community unity through the use of organized teams
of participants of varied social and economic backgrounds, skill
levels, physical and developmental capabilities, ages, ethnic
backgrounds, or genders.
(2) A program that is administered by a combination of nonprofit
organizations located in a low-income area, provides a broad range of
services to residents of such an area, is governed by a board composed
in significant part of low-income individuals, and is intended to
provide opportunities for individuals or teams of individuals to engage
in community projects in such an area that meet unaddressed community
and individual needs, including projects that would--
(i) Meet the needs of low-income children and youth aged 18 and
younger, such as providing after-school ``safe-places,'' including
schools, with opportunities for learning and recreation; or
(ii) Be directed to other important unaddressed needs in such an
area.
(d) Programs that expand service program capacity. (1) A program
that provides specialized training to individuals in service-learning
and places the individuals after such training in positions, including
positions as service-learning coordinators, to facilitate service-
learning in programs eligible for funding under Serve-America.
(2) An AmeriCorps entrepreneur program that identifies, recruits,
and trains gifted young adults of all backgrounds and assists them in
designing solutions to community problems.
(e) Campus-based programs. A campus-based program that is designed
to provide substantial service in a community during the school term
and during summer or other vacation periods through the use of--
(1) Students who are attending an institution of higher education,
including students participating in a work-study program assisted under
part C of title IV of the Higher Education Act of 1965 (42 U.S.C. 2751
et seq.);
(2) Teams composed of such students; or
(3) Teams composed of a combination of such students and community
residents.
(f) Intergenerational programs. An intergenerational program that
combines students, out-of-school youths, and older adults as
participants to provide needed community services, including an
intergenerational component for other AmeriCorps programs described in
this subsection.
(g) Youth development programs. A full-time, year-round youth corps
program or full-time summer youth corps program, such as a conservation
corps or youth service corps (including youth corps programs under
subtitle I, the Public Lands Corps established under the Public Lands
Corps Act of 1993, the Urban Youth Corps established under section 106
of the National and Community Service Trust Act of 1993, and other
conservation corps or youth service corps that perform service on
Federal or other public lands or on Indian lands or Hawaiian home
lands), that:
(1) Undertakes meaningful service projects with visible public
benefits, including natural resource, urban renovation, or human
services projects;
(2) Includes as participants youths and young adults between the
ages of 16 and 25, inclusive, including out-of-school youths and other
disadvantaged youths (such as youths with limited basic skills, youths
in foster care who are becoming too old for foster care, youths of
limited English proficiency, homeless youths, and youths who are
individuals with disabilities) who are between those ages; and
(3) Provides those participants who are youths and young adults
with--
(i) Crew-based, highly structured, and adult-supervised work
experience, life skills, education, career guidance and counseling,
employment training, and support services; and
(ii) The opportunity to develop citizenship values and skills
through service to their community and the United States.
(h) Individualized placement programs. An individualized placement
program that includes regular group activities, such as leadership
training and special service projects.
(i) Other programs. Such other AmeriCorps programs addressing
educational, public safety, human, or environmental needs as the
Corporation may designate.
Subpart B--Participant Eligibility, Requirements and Benefits
Sec. 2522.200 What are the eligibility requirements for AmeriCorps
participants?
(a) An AmeriCorps participant must be 17 years of age or older at
the commencement of service (unless the participant is in a youth corps
described in Sec. 2522.110(a)(1)(ii), in which case the participant
must be between the ages of 16 and 25, inclusive).
(b) An AmeriCorps participant must either have a high school
diploma or its equivalent (including an alternative diploma or
certificate for those individuals with disabilities for whom such an
alternative diploma or certificate is appropriate) or agree to obtain a
high school diploma or its equivalent. However, if the program in which
the individual seeks to become a participant conducts an independent
evaluation demonstrating that an individual is incapable of obtaining a
high school diploma or its equivalent, the Corporation may waive this
requirement.
(c) Unless an individual is enrolled in an institution of higher
education on an ability to benefit basis and is considered eligible for
funds under section 484 of the Higher Education Act of 1965 (20 U.S.C.
1091), he or she may not have dropped out of elementary or secondary
school in order to enroll as an AmeriCorps participant.
(d) An AmeriCorps participant must be a citizen or national of the
United States or lawful permanent resident alien of the United States.
Sec. 2522.210 How are AmeriCorps participants recruited and selected?
(a) Local recruitment and selection. In general, AmeriCorps
participants will be selected locally by an approved AmeriCorps
program, and the selection criteria will vary widely among the
different programs. Nevertheless, AmeriCorps programs must select their
participants in a fair and non-discriminatory manner which complies
with part 2542 of this chapter. In selecting participants, programs
must also comply with the recruitment and selection requirements
specified in this section.
(b)(1) National and State recruitment and selection. The
Corporation and each State Commission will establish a system to
recruit individuals who desire to perform national service and to
assist the placement of these individuals in approved AmeriCorps
positions, which may include positions available under titles I and II
of the Domestic Volunteer Service Act of 1973 (42 U.S.C. 4951 et seq.).
The national and State recruitment and placement system will be
designed and operated according to Corporation guidelines.
(2) Dissemination of information. The Corporation and State
Commissions will disseminate information regarding available approved
AmeriCorps positions through cooperation with secondary schools,
institutions of higher education, employment service offices, State
vocational rehabilitation agencies within the meaning of the
Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.) and other State
agencies that primarily serve qualified individuals with disabilities,
and other appropriate entities, particularly those organizations that
provide outreach to disadvantaged youths and youths who are qualified
individuals with disabilities.
(c) National leadership pool. (1) Selection and training. From
among individuals recruited under paragraph (b) of this section, the
Corporation may select individuals with significant leadership
potential, as determined by the Corporation, to receive special
training to enhance their leadership ability. The leadership training
will be provided by the Corporation directly or through a grant or
contract as the Corporation determines.
(2) Emphasis on certain individuals. In selecting individuals to
receive leadership training under this provision, the Corporation will
make special efforts to select individuals who have served--
(i) In the Peace Corps;
(ii) As VISTA volunteers;
(iii) As participants in AmeriCorps programs receiving assistance
under parts 2520 through 2524 of this chapter;
(iv) As participants in National Service Demonstration program
FR Doc. 94-322 Corporation Grant Programs and Support and Investment Activities
s
that received assistance from the Commission on National and Community
Service; or
(v) As members of the Armed Forces of the United States and who
were honorably discharged from such service.
(3) Assignment. At the request of a program that receives
assistance, the Corporation may assign an individual who receives
leadership training under paragraph (c)(1) of this section to work with
the program in a leadership position and carry out assignments not
otherwise performed by regular participants. An individual assigned to
a program will be considered to be a participant of the program.
Sec. 2522.220 What are the required terms of service for AmeriCorps
participants, and may they serve for more than one term?
(a) Term of service. In order to be eligible for the educational
award described in Sec. 2522.240(a), participants serving in approved
AmeriCorps positions must complete a term of service as defined in this
section:
(1) Full-time service. 1,700 hours of service during a period of
not less than nine months and not more than one year.
(2) Part-time service. 900 hours of service during a period of not
more than two years, or, if the individual is enrolled in an
institution of higher education while performing all or a portion of
the service, not more than three years.
(3) Reduced part-time term of service. The Corporation may reduce
the number of hours required to be served in order to receive an
educational award for certain part-time participants serving in
approved AmeriCorps positions. In such cases, the educational award
will be reduced in direct proportion to the reduction in required hours
of service. These reductions may be made for summer programs, for
categories of participants in certain approved AmeriCorps programs and
on a case-by-case, individual basis as the Corporation deems prudent.
(b) Restriction on multiple terms. While there is no limit on the
number of terms an individual may serve in one or more AmeriCorps
program, an AmeriCorps participant may only receive the benefits
described in Secs. 2522.240 through 2522.250 for the first two
successfully-completed terms of service, regardless of whether those
terms were served on a full-, part-, or reduced part-time basis.
(c) Eligibility for second term. A participant will only be
eligible to serve a second or additional term of service if that
individual has received satisfactory performance review(s) for any
previous term(s) of service. Mere eligibility for a second or further
term of service in no way guarantees a participant selection or
placement.
(d) Participant performance review. For the purposes of determining
a participant's eligibility for a second or additional term of service
and/or for an AmeriCorps educational award, each AmeriCorps program
will evaluate the performance of a participant mid-term and upon
completion of a participants term of service. The end-of-term
performance evaluation will assess the following:
(1) Whether the participant has completed the required number of
hours described in paragraph (a) of this section;
(2) Whether the participant has satisfactorily completed
assignments, tasks or projects; and
(3) Whether the participant has met any other performance criteria
which had been clearly communicated both orally and in writing at the
beginning of the term of service.
(e) Grievance procedure. Any AmeriCorps participant wishing to
contest a program's ruling of unsatisfactory performance may file a
grievance according to the procedures set forth in part 2540 of this
chapter. If that grievance procedure or subsequent binding arbitration
procedure finds that the participant did in fact satisfactorily
complete a term of service, then that individual will be eligible to
receive an educational award and/or be eligible to serve a second term
of service.
Sec. 2522.230 Under what circumstances may AmeriCorps participants be
released from completing a term of service, and what are the
consequences?
In general, AmeriCorps programs have the authority to release
participants serving in approved AmeriCorps positions from completing a
term of service for two reasons: for compelling personal circumstances
as demonstrated by the participant or for cause.
(a) Release for compelling personal circumstances. In general,
AmeriCorps programs have the authority to define the circumstances by
which a participant may be released for compelling personal
circumstances. Programs wishing to release participants serving in
approved AmeriCorps positions may elect either--
(1) To grant the release and provide a portion of the educational
award equal to the portion of the term served; or
(2) To permit the participant to temporarily suspend performance of
the term of service for a period of up to two years (and such
additional period as the Corporation may allow for extenuating
circumstances) and, upon completion of such period, to allow the
participant to return to the program with which he or she was serving
or to a similar AmeriCorps program with the assistance of the
Corporation, in order to complete the remainder of the term of service
and obtain the entire AmeriCorps educational award.
(b) Release for cause. AmeriCorps programs have the authority to
define the circumstances by which a participant may be released for
cause, except as specified in paragraph (b)(1) of this section.
AmeriCorps programs must establish a written policy to be signed both
by the participant and the program directors that clearly states the
circumstances under which participants may be released for cause.
Examples of conduct which programs may decide constitutes grounds for
release for cause include chronic truancy, consistent failure to follow
directions, and failure to adhere to program rules and guidelines.
Under no circumstances may a participant's disability constitute
grounds for release for cause.
(1) Circumstances requiring release for cause. AmeriCorps programs
are required to release for cause any participant who is convicted of a
felony during a term of service. Any participant who is officially
charged with a violent felony (e.g., rape or homicide), or sale or
distribution of a controlled substance, or any participant convicted of
the possession of a controlled substance, will have his or her service
suspended without a living allowance and without receiving credit for
hours missed. Any individual whose service was suspended because of
being charged with a violent felony or sale or distribution of a
controlled substance may resume service if he or she is found not
guilty or if such charge is dismissed. Any individual whose service was
suspended because of being convicted of a first offense of the
possession of a controlled substance may resume service by
demonstrating that he or she has enrolled in an approved drug
rehabilitation program. A person convicted of a second or third
possession of a controlled substance may resume service by
demonstrating successful completion of a rehabilitation program.
(2) Impact of release for cause. A participant released for cause
may not receive any portion of the AmeriCorps educational award. In
addition, any individual released for cause who wishes to reapply to
the program from which he or she was released or to any other
AmeriCorps program is required to disclose the release to that program.
Failure to disclose to an AmeriCorps program any history of having been
released for cause from another AmeriCorps program will render an
individual ineligible to receive the AmeriCorps educational award,
notwithstanding whether or not that individual successfully completes
the term of service.
(3) Grievance procedure. Any AmeriCorps participant wishing to
contest a program decision to release that participant for cause may
file a grievance according to the procedures set forth in part 2540 of
this chapter. Pending the resolution of such grievance procedure, a
program may suspend the service of that participant. If the initial
grievance procedure or subsequent binding arbitration proceedings find
that there was not cause for release, the AmeriCorps program must
reinstate the participant; moreover, the program must credit the
participant with any service hours missed and pay the participant the
full amount of any living allowance the participant did not receive as
a result of such suspension. The Corporation retains the discretion to
determine whether Corporation funds may be used to pay the living
allowance withheld during a participant's suspension.
Sec. 2522.240 What benefits do AmeriCorps participants serving in
approved AmeriCorps positions receive?
(a) AmeriCorps Educational Awards. An individual serving in an
approved AmeriCorps position will receive an educational award from the
National Service Trust upon successful completion of each of up to two
terms of service as defined in Sec. 2522.220.
(b) Living allowances--(1) Amount. Subject to the provisions of
this part, any individual who participates on a full-time basis in an
AmeriCorps program carried out using assistance provided under
Sec. 2521.30 of this chapter will receive a living allowance in an
amount equal to or greater than the average annual subsistence
allowance provided to VISTA volunteers under section 105 of the
Domestic Volunteer Service Act of 1973 (42 U.S.C. 4955). This
requirement will not apply to any program that was in existence prior
to September 21, 1993 (the date of the enactment of the National and
Community Service Trust Act of 1993) or to any program which receives
only educational awards from the Corporation.
(2) Maximum living allowance. With the exception of a professional
corps described in Sec. 2521.110(b)(3) of this chapter, the AmeriCorps
living allowances may not exceed 200 percent of the average annual
subsistence allowance provided to VISTA volunteers under section 105 of
the Domestic Volunteer Service Act of 1973 (42 U.S.C. 4955). A
professional corps AmeriCorps program may provide a stipend in excess
of the maximum, subject to the following conditions:
(i) Corporation assistance may not be used to pay for any portion
of the allowance; and
(ii) The program must be operated directly by the applicant,
selected on a competitive basis by submitting an application directly
to the Corporation, and may not be included in a State's application
for the AmeriCorps program funds distributed by formula, or competition
described in Sec. 2521.30 (a)(1) and (a)(2) of this chapter.
(3) Living allowances for part-time participants. Programs may, but
are not required to, provide living allowances to individuals
participating on a part-time basis (or a reduced term of part-time
service authorized under Sec. 2522.220(a)(3). Such living allowances
should be prorated to the living allowance authorized in paragraph
(b)(1) of this section and will comply with such restrictions therein.
(4) Waiver or reduction of living allowance. The Corporation may,
at its discretion, waive or reduce the living allowance requirements if
a program can demonstrate to the satisfaction of the Corporation that
such requirements are inconsistent with the objectives of the program,
and that participants will be able to meet the necessary and reasonable
costs of living (including food, housing, and transportation) in the
area in which the program is located.
(5) Limitation on Federal share. Excepting the provision concerning
professional corps in paragraph (b)(2)(i) of this section, the Federal
share, including Corporation and other Federal funds, may not exceed
85% of the total amount provided to an AmeriCorps participant for a
living allowance and may not exceed 85% of the minimum required living
allowance enumerated in paragraph (b)(1) of this section.
Sec. 2522.250 What other benefits do AmeriCorps participants serving
in approved AmeriCorps positions receive?
(a) Child care. Grantees must provide child care through an
eligible provider or a child care allowance in an amount determined by
the Corporation to those full-time participants who need child care in
order to participate.
(1) Need. A participant is considered to need child care in order
to participate in the program if he or she:
(i) Is the parent or legal guardian of, or is acting in loco
parentis for, a child under 13 who resides with the participant;
(ii) Has a family income that does not exceed 75 percent of the
State's median income for a family of the same size;
(iii) At the time of acceptance into the program, is not currently
receiving child care assistance from another source, including a parent
or guardian, which would continue to be provided while the participant
serves in the program; and
(iv) Certifies that he or she needs child care in order to
participate in the program.
(2) Provider eligibility. Eligible child care providers are those
who are eligible child care providers as defined in the Child Care and
Development Block Grant Act of 1990 (42 U.S.C. 9858n(5)).
(3) Child care allowance. The amount of the child care allowance
will be determined by the Corporation based on payment rates for the
Child Care and Development Block Grant Act of 1990 (42 U.S.C.
9858c(4)(A)).
(4) Federal share. The Corporation will pay 100 percent of the
child care allowance, or, if the program provides child care through an
eligible provider, the actual cost of the care or the amount of the
allowance, whichever is less.
(b) Health care. In general, grantees must provide a health care
policy meeting the minimum or alternative benefits determined by the
Corporation, to any full-time participant who is eligible for health
care benefits.
(1) Participant eligibility. A full-time participant is eligible
for health care benefits if he or she is not otherwise covered by a
health care policy providing minimum benefits established by the
Corporation at the time he or she is accepted into a program. If, as a
result of participation, or if, during the term of service, a
participant demonstrates loss of coverage through no deliberate act of
his or her own, such as parental or spousal job loss or
disqualification from Medicaid, the participant will be eligible for
health care benefits.
(2) Minimum benefits. The Corporation will determine the minimum
benefits that must be included in the policy provided to eligible
participants.
(3) Alternative benefits. A grantee may provide a health care
policy that does not include the minimum benefits if the fair market
value, as determined by the Corporation, of the proposed plan is equal
to or greater than a plan that includes the minimum benefits.
(4) Federal share. The Corporation will pay 85% of the cost of the
most affordable policy for any policy that provides minimum benefits.
The most affordable policy will be determined by the Corporation. The
Corporation will not pay any share of the cost of a policy that does
not include the minimum benefits.
Subpart C--Application Requirements
Sec. 2522.300 What are the application requirements for AmeriCorps
program grants?
All eligible applicants seeking AmeriCorps program grants must--
(a) Provide a description of the specific program(s) being
proposed, including the type of program and of how it meets the minimum
program requirements described in Sec. 2522.100; and
(b) Comply with any additional requirements as specified by the
Corporation in the application package.
Sec. 2522.310 What are the application requirements for AmeriCorps
educational awards only?
(a) Eligible applicants may apply for AmeriCorps educational awards
only for one of the following eligible service positions:
(1) A position for a participant in an AmeriCorps program that:
(i) Is carried out by an entity eligible to receive support under
part 2521 of this chapter;
(ii) Would be eligible to receive assistance under this rule, based
on criteria established by the Corporation, but has not applied for
such assistance;
(2) A position facilitating service-learning in a program described
in parts 2515 through 2519 of this chapter;
(3) A position involving service as a crew leader in a youth corps
program or a similar position supporting an AmeriCorps program; and
(4) Such other AmeriCorps positions as the Corporation considers to
be appropriate.
(b) Because programs applying only for AmeriCorps educational
awards must, by definition, meet the same basic requirements as other
approved AmeriCorps programs, applicants must comply with the same
application requirements specified in Sec. 2522.300.
Sec. 2522.320 May an applicant submit more than one application to the
Corporation for the same program at the same time?
No. The Corporation will reject a second or subsequent application
submitted if a project proposed to be conducted using assistance
requested by the applicant is included in another application already
pending before the Corporation.
Subpart D--Selection of AmeriCorps Programs
Sec. 2522.400 How will the basic selection criteria be applied?
From among the eligible programs that meet the minimum program
requirements and that have submitted applications to the Corporation,
the Corporation must select the best ones to receive funding. Although
there is a wide range of factors that must be taken into account during
the selection process, there are certain fundamental selection criteria
that apply to all programs in each grant competition, regardless of
whether they receive funding or educational awards directly or through
subgrants. States and other subgranting applicants are required to use
these criteria during the competitive selection of subgrantees. The
Corporation may adjust the relative weight given to each criterion.
(Additional and more specific criteria will be published in the
applications.)
Sec. 2522.410 What are the basic selection criteria for AmeriCorps
programs?
The Corporation will consider elements relating to the program
design and the capacity of the organization to carry it out; factors
relating to need; and whether the program contributes to meeting the
Corporation's overall goals relating to geographic, program and
participant mix. These criteria are discussed in this section.
Additional detail relating to these criteria may be published in any
notice of availability of funding.
(a) Program criteria. The Corporation will consider four factors
relating to the program design: the quality of the program proposed to
be carried out directly by the applicant or supported by a grant from
the applicant; the innovative aspects of the AmeriCorps program; the
feasibility of replicating the program; and the sustainability of the
program, based on evidence such as the existence of strong and broad-
based community support for the program and of multiple funding sources
or private funding. The Corporation will also consider an
organization's capacity to carry out the program based on--
(1) The quality of the leadership of the AmeriCorps program;
(2) The past performance of the organization or program; and
(3) The extent to which the program builds on existing programs.
(b) Need criteria. In selecting programs, the Corporation will take
into consideration the extent to which projects address State-
identified issue priorities (if the program will be funded out of
formula funds) or national priorities (if the program will be funded
out of competitive funds), and whether projects would be conducted in
areas of need.
(1) Issue priorities. In order to concentrate national efforts on
meeting certain educational, public safety, human, or environmental
needs, and to achieve the other purposes of this Act, the Corporation
will establish, and after review of the strategic plan approved by the
Board, periodically alter priorities regarding the AmeriCorps programs
that will receive assistance (funding or approved AmeriCorps positions)
and the purposes for which such assistance may be used. These
priorities will be applied to assistance provided on a competitive
basis as described in Sec. 2521.30 of this chapter, and to any
assistance provided through a subgrant of such funds.
(i) States must establish, and through the national service plan
process described in part 2513 of this chapter, periodically alter
priorities regarding the programs that will receive assistance (funding
or approved AmeriCorps positions) provided on a formula basis as
described in Sec. 2521.30(a)(1) of this chapter. The State priorities
will be subject to Corporation review as part of the application
process under part 2521 of this chapter.
(ii) The Corporation will provide advance notice to potential
applicants of any AmeriCorps priorities to be in effect for a fiscal
year. The notice will describe any alternation made in the priorities
since the previous notice. If a program receives multi-year funding
based on conformance to national or state priorities and such
priorities are altered after the first year of funding, the program
will not be adversely affected due to the change in priorities until
the term of the grant is ended.
(2) Areas of need. Areas of need are:
(i) Communities designated by the Federal government or states as
empowerment zones or redevelopment areas, targeted for special economic
incentives, or otherwise identifiable as having high concentrations of
low-income people;
(ii) Areas that are environmentally distressed;
(iii) Areas adversely affected by Federal actions related to the
management of Federal lands that result in significant regional job
losses and economic dislocation;
(iv) Areas adversely affected by reductions in defense spending or
the closure or realignment of military installations; and
(v) Areas that have an unemployment rate greater than the national
average unemployment rate for the most recent 12 months for which
satisfactory data are available.
(c) Program and participant mix criteria. The Corporation will
select programs that will help achieve participant, program type, and
geographic diversity across programs.
(d) Additional considerations. The Corporation may publish in any
notice of availability of funding additional factors that it may take
into consideration in selecting programs, including any additional
priorities applicable to any or all funds.
Sec. 2522.420 Can a State's application for formula funds be rejected?
Yes. Formula funds are not an entitlement.
(a) Notification. If the Corporation rejects an application
submitted by a State Commission under part 2550 of this chapter for
funds described in Sec. 2521.30 of this chapter, the Corporation will
promptly notify the State Commission of the reasons for the rejection
of the application.
(b) Revision. The Corporation will provide a State Commission
notified under paragraph (a) of this section with a reasonable
opportunity to revise and resubmit the application. At the request of
the State Commission, the Corporation will provide technical assistance
to the State Commission as part of the resubmission process. The
Corporation will promptly reconsider an application resubmitted under
this paragraph.
(c) Redistribution. The amount of any State's allotment under
Sec. 2521.30(a) of this chapter for a fiscal year that the Corporation
determines will not be provided for that fiscal year will be available
for redistribution by the Corporation to the States, Territories and
Indian Tribes with approved AmeriCorps applications as the Corporation
deems appropriate.
Subpart E--Monitoring and Evaluation Requirements
Sec. 2522.500 What are the purposes of monitoring and evaluation?
Monitoring is a continuous effort to assess performance and improve
quality. Evaluation is an assessment of program effectiveness and
outcomes at the end of given period of time. Every monitoring and
evaluation requirement serves one or more of the following purposes:
(a) Ensuring quality programs;
(b) Examining the benefits of national and community service; or
(c) Fulfilling legislative requirements.
Sec. 2522.510 How will individual AmeriCorps programs be evaluated?
The Corporation will evaluate programs based on the following:
(a) The extent to which the program meets the objectives
established and agreed to by the grantee and the Corporation before the
grant award;
(b) The extent to which the program is cost-effective; and
(c) The effectiveness of the program in meeting the following
legislative objectives:
(1) Providing direct and demonstrable services and projects that
benefit the community by addressing educational, public safety, human,
or environmental needs;
(2) Recruiting and enrolling diverse participants consistent with
the requirements of part 2540 of this chapter, based on economic
background, race, ethnicity, age, gender, marital status, education
levels, and disability;
(3) Promoting the educational achievement of each participant based
on earning a high school diploma or its equivalent and future
enrollment in and completion of increasingly higher levels of
education;
(4) Encouraging each participant to engage in public and community
service after completion of the program based on career choices and
participation in other service programs;
(5) Promoting an ethic of active and productive citizenship among
participants;
(6) Supplying additional volunteer assistance to community agencies
without providing more volunteers than can be effectively utilized;
(7) Providing services and activities that could not otherwise be
performed by employed workers and that will not supplant the hiring of,
or result in the displacement of, employed workers; and
(8) Other criteria determined and published by the Corporation.
Sec. 2522.520 What types of activities will programs be required to
undertake in order to monitor and evaluate their effectiveness?
Programs will be required to:
(a) Monitor management effectiveness, the quality of services
provided, and the satisfaction of both participants and persons served.
Monitoring should be a continuous process, allowing for frequent
feedback and quick correction of weaknesses. Monitoring approaches such
as community advisory councils, participant advisory councils, peer
reviews, quality control inspections, and customer and participant
surveys are encouraged;
(b) Track progress toward objectives. Objectives will be
established by programs and approved by the Corporation. Programs must
submit to the Corporation (or State or grantmaking entity as
applicable) periodic performance reports and, as part of an annual
report, an annual performance report; and
(c) Collect and submit to the Corporation (through the State or
grantmaking entity as applicable) the following data:
(1) Information on participants including the total number of
participants in the program, and the number of participants by race,
ethnicity, age, gender, economic background, education level, ethnic
group, disability classification, geographic region, and marital
status;
(2) Information on services conducted in areas classified as
empowerment zones (or redevelopment areas), in areas that are
environmentally distressed, in areas that are adversely affected by
Federal actions related to the management of Federal lands, in areas
that are adversely affected by reductions in defense spending, or in
areas that have an unemployment rate greater than the national average
unemployment rate; and
(3) Other information as required by the Corporation.
Sec. 2522.530 What types of activities will States or grantmaking
entities be required to undertake in order to monitor and evaluate the
effectiveness of their subgrantees?
In cases where a State or grantmaking entity is the direct grantee
they will be required to:
(a) Ensure that subgrantees comply with the requirements of this
subpart;
(b) Track program performance in terms of progress towards pre-
established objectives and ensure that corrective action is taken when
necessary. Submit periodic performance reports and, as part of an
annual report, an annual performance report to the Corporation for each
subgrantee; and
(c) Collect from programs and submit to the Corporation the
descriptive information required in this subpart.
Sec. 2522.540 Are programs or State/grantmaking entities required to
perform independent evaluations?
No. An independent evaluation is not required but is permissible.
Sec. 2522.550 What types of activities will the Corporation be
required to undertake in order to evaluate the overall success of the
AmeriCorps programs?
(a) The Corporation will conduct independent evaluations of
programs, including in-depth studies of selected programs. These
evaluations will consider the opinions of participants and members of
the community where services are delivered. Where appropriate these
studies will compare participants with individuals who have not
participated in service programs. These evaluations will:
(1) Study the extent to which the national service impacts involved
communities;
(2) Study the extent to which national service increases positive
attitudes among participants regarding the responsibilities of citizens
and their role in solving community problems;
(3) Determine the costs and effectiveness of different program
models in meeting program objectives including full- and part-time
programs, programs involving different types of national service,
programs using different recruitment methods, programs offering
alternative non-federally funded vouchers or post-service benefits, and
programs utilizing individual placements and teams;
(4) Determine the impact of programs in each State on the ability
of VISTA and National Senior Volunteer Corps, each regular and reserve
component of the Armed Forces, and the Peace Corps to recruit
individuals residing in that State; and
(5) Determine the levels of living allowances paid in all
AmeriCorps programs and American Conservation and Youth Corps,
individually, by State, and by region and determine the effects that
such living allowances have had on the ability of individuals to
participate in such programs.
(b) The Corporation will also determine by June 30, 1995:
(1) Whether the State and national priorities designed to meet
educational, public safety, human, or environmental needs are being
addressed;
(2) Whether the outcomes of both stipended and nonstipended service
programs are defined and measured appropriately;
(3) Whether stipended service programs, and service programs
providing educational benefits in return for service, should focus on
economically disadvantaged individuals or at risk youth, or whether
such programs should include a mix of individuals, including
individuals from middle and upper income families;
(4) The role and importance of stipends and educational benefits in
achieving desired outcomes in the service programs;
(5) The income distribution of AmeriCorps participants, to
determine the level of participation of economically disadvantaged
individuals. The total income of participants will be determined as of
the date the participant was first selected to participate in a program
and will include family total income unless the evaluating entity
determines that the participant was independent at the time of
selection. Definitions for ``independent'' and ``total income'' are
those used in section 480(a) of the Higher Education Act of 1965;
(6) The amount of assistance provided under the AmeriCorps programs
that has been expended for projects conducted in areas classified as
empowerment zones (or redevelopment areas), in areas that are
environmentally distresses or adversely affected by Federal actions
related to the management of Federal lands, in areas that are adversely
affected by reductions in defense spending, or in areas that have an
unemployment rate greater than the national average unemployment rate
for the most recent 12 months for which satisfactory data are
available; and
(7) The implications of the results of these studies as appropriate
for authorized funding levels.
Sec. 2522.560 Will information on individual participants be kept
confidential?
(a) Yes. The Corporation will maintain the confidentiality of
information regarding individual participants that is acquired for the
purpose of the evaluations described in this Sec. 2522.550. The
Corporation will disclose individual participant information only with
the prior written consent of the participant. However, the Corporation
may disclose aggregate participant information.
(b) Grantees and subgrantees that receive assistance under this
chapter must comply with the provisions of paragraph (a) of this
section.
PART 2523--AGREEMENTS WITH OTHER FEDERAL AGENCIES FOR THE PROVISION
OF AMERICORPS PROGRAM ASSISTANCE
Sec.
2523.10 Are Federal agencies eligible to apply for AmeriCorps
program grants?
2523.20 Which Federal agencies may apply for such grants?
2523.30 Must Federal agencies meet the requirements imposed on
other grantees?
2523.40 For what purposes should Federal agencies use AmeriCorps
programs grants?
2523.50 What types of grants are Federal agencies eligible to
receive?
2523.60 May Federal agencies enter into partnerships or participate
in consortia?
2523.70 Will the Corporation give special consideration to Federal
agency applications that address certain needs?
2523.80 Are there restrictions on the use of Corporation funds?
2523.90 Is there a matching requirement for Federal agencies?
2523.100 Are participants in programs operated by Federal agencies
Federal employees?
2523.110 Can Federal agencies submit multiple applications?
2523.120 Must Federal agencies consult with State Commissions?
Authority: 42 U.S.C. 12501 et seq.
Sec. 2523.10 Are Federal agencies eligible to apply for AmeriCorps
program grants?
Yes. Federal agencies may apply for and receive AmeriCorps grants
under parts 2521 and 2522 of this chapter, and they are eligible to
receive up to one-third of the funds available for competitive
distribution under Sec. 2521.30(b)(3) of this chapter. The Corporation
may also enter into a contract or cooperative agreement with another
Federal agency to support an AmeriCorps program carried out by the
agency. The Corporation may transfer funds available to it to other
Federal agencies.
Sec. 2523.20 Which Federal agencies may apply for such grants?
The Corporation will consider applications only from Cabinet level
departments and independent agencies. Bureaus, divisions, and local and
regional offices of such departments and agencies can only apply
through the central department or agency; however, it is possible for
the department or agency to submit an application proposing more than
one program.
Sec. 2523.30 Must Federal agencies meet the requirements imposed on
other grantees?
Yes. Federal agency programs must meet the same requirements and
serve the same purposes as all other applicants seeking support under
part 2522 of this chapter.
Sec. 2523.40 For what purposes should Federal agencies use AmeriCorps
program grants?
AmeriCorps grants should enable Federal agencies to establish
programs that leverage agencies' existing resources and grant-making
powers toward the goal of integrating service more fully into agencies'
programs and activities. Agencies should plan to ultimately support new
service initiatives out of their own budgets and appropriations.
Sec. 2523.50 What types of grants are Federal agencies eligible to
receive?
Federal agencies may apply for planning and operating grants
subject to the terms established by the Corporation in Sec. 2521.20 of
this chapter, except that operating grants will be awarded with the
expectation that the Federal agencies will support the proposed
programs from their own budgets once the Corporation grant(s) expire.
Sec. 2523.60 May Federal agencies enter into partnerships or
participate in consortia?
Yes. Such partnerships or consortia may consist of other Federal
agencies, Indian Tribes, subdivisions of States, community based
organizations, institutions of higher education, or other non-profit
organizations.
Sec. 2523.70 Will the Corporation give special consideration to
Federal agency applications that address certain needs?
Yes. The Corporation will give special consideration to those
applications that address the national priorities established by the
Corporation. The Corporation may also give special consideration to
those applications that demonstrate the agency's intent to leverage its
own funds through an approved partnership or consortium, by raising
other funds from Federal or non-Federal sources, by giving grantees
incentives to build service opportunities into their programs, by
committing appropriate in-kind resources, or by other means.
Sec. 2523.80 Are there restrictions on the use of Corporation funds?
Yes. The supplantation and nondisplacement provisions specified in
part 2540 of this chapter apply to the Federal AmeriCorps programs
supported with such assistance.
Sec. 2523.90 Is there a matching requirement for Federal agencies?
No. In general, a Federal agency is not required to match funds in
programs that receive support under this chapter.
Sec. 2523.100 Are participants in programs operated by Federal
agencies Federal employees?
No. Participants in these programs follow the same employee status
as participants in other approved AmeriCorps programs, and are not
considered Federal employees, except for the purposes of the Family and
Medical Leave Act as specified in Sec. 2540.220(b) of this chapter.
Sec. 2523.110 Can Federal agencies submit multiple applications?
No. The Corporation will only consider one application per agency.
The application may propose more than one program, however, and the
Corporation may choose to fund any or all of those programs.
Sec. 2523.120 Must Federal agencies consult with State Commissions?
Yes. Federal agencies must provide a description of the manner in
which the proposed AmeriCorps program(s) is coordinated with the
application of the State in which the projects will be conducted.
Agencies must also describe proposed efforts to coordinate AmeriCorps
activities with State Commissions and other funded AmeriCorps programs
within the State in order to build upon existing programs and not
duplicate efforts.
PART 2524--AMERICORPS TECHNICAL ASSISTANCE AND OTHER SPECIAL GRANTS
Sec.
2524.10 For what purposes will technical assistance and training
funds be made available?
2524.20 What are the guidelines for program development assistance
and training grants?
2524.30 What are the guidelines for challenge grants?
2524.40 What are the guidelines for grants to involve persons with
disabilities?
2524.50 What are the guidelines for assistance with disaster
relief?
Authority: 42 U.S.C. 12501 et seq.
Sec. 2524.10 For what purposes will technical assistance and training
funds be made available?
(a) To the extent appropriate and necessary, the Corporation may
make technical assistance available to States, Indian tribes, labor
organizations, organizations operated by young adults, organizations
serving economically disadvantaged individuals, and other entities
eligible to apply for assistance under parts 2521 and 2522 of this
chapter that desire--
(1) To develop AmeriCorps programs; or
(2) To apply for assistance under parts 2521 and 2522 of this
chapter or under a grant program conducted using such assistance.
(b) In addition, the Corporation may provide program development
assistance and conduct, directly or by grant or contract, appropriate
training programs regarding AmeriCorps in order to--
(1) Improve the ability of AmeriCorps programs assisted under parts
2521 and 2522 of this chapter to meet educational, public safety,
human, or environmental needs in communities--
(i) Where services are needed most; and
(ii) Where programs do not exist, or are too limited to meet
community needs, as of the date on which the Corporation makes the
grant or enters into the contract;
(2) Promote leadership development in such programs;
(3) Improve the instructional and programmatic quality of such
programs to build an ethic of civic responsibility;
(4) Develop the management and budgetary skills of program
operators;
(5) Provide for or improve the training provided to the
participants in such programs;
(6) Encourage AmeriCorps programs to adhere to risk management
procedures, including the training of participants in appropriate risk
management practices; and
(7) Assist in such other manner as the Corporation may specify.
Sec. 2524.20 What are the guidelines for program development
assistance and training grants?
(a) Eligibility. States, Federal agencies, Indian tribes, public or
private nonprofit agencies, institutions of higher education, for-
profit businesses, and individuals may apply for assistance under this
section.
(b) Duration. A grant made under this section will be for a term of
up to one year and is renewable.
(c) Application requirements. Eligible applicants must comply with
the requirements specified in the Corporation's application package.
Sec. 2524.30 What are the guidelines for challenge grants?
(a) Purpose. The purpose of these grants is to challenge high
quality AmeriCorps programs to diversify their funding base by matching
private dollars they have raised with Corporation support. The
Corporation will provide not more than $1 for each $1 raised in cash by
the program from private sources in excess of amounts otherwise
required to be provided by the program to satisfy the matching funds
requirements specified under Sec. 2521.30(g) of this chapter.
(b) Eligibility. Only Corporation grantees that meet all of the
following eligibility criteria may apply for challenge grants:
(1) They are funded under parts 2520 through 2523 of this chapter.
(2) They are high quality programs with demonstrated experience in
establishing and implementing projects that provide benefits to
participants and communities.
(3) They have operated with Corporation funds for at least six
months.
(4) They have secured the matching funds required described in
Secs. 2521.30(g), 2522.240(b)(5), 2522.250(a)(4), and 2522.250(b)(4) of
this chapter.
(c) Allowable program activities. Challenge grants are intended to
provide special opportunities for national and community service
programs to enroll additional participants or undertake other
activities specified by the Corporation.
(d) Application procedures. Eligible applicants must comply with
the requirements specified in the Corporation's application materials.
(e) Limitation on use of the funds. Each year the Corporation will
establish a maximum award that a program may receive as a challenge
grant.
(f) Allocation of funds. The Corporation will determine annually
how much funding will be allocated to challenge grants from funds
appropriated for AmeriCorps programs.
Sec. 2524.40 What are the guidelines for grants to involve persons
with disabilities?
(a) Purpose. There are two general purposes for these grants:
(1) To assist AmeriCorps grantees in placing applicants who require
reasonable accommodation (as defined in section 101(9) of the Americans
with Disabilities Act of 1990, 42 U.S.C. 12111(9)) or auxiliary aids
and services (as defined in section 3(1) of such Act, 42 U.S.C.
12102(1)) in an AmeriCorps program; and
(2) To conduct outreach activities to individuals with disabilities
to recruit them for participation in AmeriCorps programs.
(b) Eligibility--(1) Placement, accommodation, and auxiliary
services. Eligibility for assistance under this part is limited to
AmeriCorps programs that:
(i) Receive competitive funding from the Corporation under
Secs. 2521.30(a)(2) or 2521.30(b)(3) of this chapter; and
(ii) Demonstrate that the program has received a substantial number
of applications for placement from persons who are individuals with a
disability and who require a reasonable accommodation (as defined in
section 101(9) of the Americans with Disabilities Act of 1990, or
auxiliary aids and services (as defined in section 3(1) of such Act) in
order to perform national service; and
(iii) Demonstrate that additional funding would assist the program
in placing a substantial number of such individuals with a disability
as participants in projects carried out through the program.
(2) Outreach. Corporation grantees and any public or private
nonprofit organization may apply for funds to conduct outreach to
individuals with disabilities to recruit them for participation in
AmeriCorps programs. Outreach funds can also be used by any
organization to assist AmeriCorps programs in adapting their programs
to encourage greater participation by individuals with disabilities.
(c) Application procedures. Eligible applicants must comply with
the requirements specified in the Corporation's application materials.
Sec. 2524.50 What are the guidelines for assistance with disaster
relief?
(a) Purpose. Disaster relief funds are intended to provide
emergency assistance not otherwise available to enable national and
community service programs to respond quickly and effectively to a
Presidentially-declared disaster.
(b) Eligibility. Any AmeriCorps program (including youth corps, the
National Civilian Community Corps, VISTA, and other programs authorized
under the Domestic Volunteer Services Act) or grant making entity (such
as a State or Federal agency) that is supported by the Corporation may
apply for disaster relief grants.
(c) Application process. Eligible applicants must comply with the
requirements specified in the Corporation's application materials.
(d) Waivers. In appropriate cases, due to the limited nature of
disaster activities, the Corporation may waive specific program
requirements such as matching requirements and the provision of
AmeriCorps educational awards for participants supported with disaster
relief funds.
PART 2530--PURPOSES, DEFINITIONS, AND AVAILABILITY OF GRANTS
Sec.
2530.10 What are the purposes of the Investment for Quality and
Innovation activities?
2530.20 Funding priorities.
Authority: 42 U.S.C. 12501 et seq.
2530.10 What are the purposes of the Investment for Quality and
Innovation activities?
Investment for Quality and Innovation activities are designed to
develop service infrastructure and improve the overall quality of
national and community service efforts. Specifically, the Corporation
will support innovative and model programs that otherwise may not be
eligible for funding; and support other activities, such as training
and technical assistance, summer programs, leadership training,
research, promotion and recruitment, and special fellowships and
awards. The Corporation may conduct these activities either directly or
through grants to or contracts with qualified organizations.
Sec. 2530.20 Funding priorities.
The Corporation may choose to set priorities (and to periodically
revise such priorities) that limit the types of innovative and model
programs and support activities it will undertake or fund in a given
fiscal year. In setting these priorities, the Corporation will seek to
concentrate funds on those activities that will be most effective and
efficient in fulfilling the purposes of this part.
PART 2531--INNOVATIVE AND SPECIAL DEMONSTRATION PROGRAMS
Sec.
2531.10 Military Installation Conversion Demonstration programs.
2531.20 Special Demonstration Project for the Yukon-Kuskokwim Delta
of Alaska.
2531.30 Other innovative and model programs.
Authority: 42 U.S.C. 12501 et seq.
Sec. 2531.10 Military Installation Conversion Demonstration programs.
(a) Purposes. The purposes of this section are to:
(1) Provide meaningful service opportunities for economically
disadvantaged youth;
(2) Fully utilize military installations affected by closures or
realignments;
(3) Encourage communities affected by such closures or realignments
to convert the installations to community use; and
(4) Foster a sense of community pride in the youth in the
community.
(b) Definitions. As used in this section:
(1) Affected military installation. The term affected military
installation means a military installation described in section
325(e)(1) of the Job Training Partnership Act (29 U.S.C. 1662d(e)(1)).
(2) Community. The term community includes a county.
(3) Convert to community use. The term convert to community use,
used with respect to an affected military installation, includes--
(i) Conversion of the installation or a part of the installation
to--
(A) A park;
(B) A community center;
(C) A recreational facility; or
(D) A facility for a Head Start program under the Head Start Act
(42 U.S.C. 9831 et seq.); and
(ii) Carrying out, at the installation, a construction or economic
development project that is of substantial benefit, as determined by
the Corporation, to--
(A) The community in which the installation is located; or
(B) A community located within such distance of the installation as
the Chief Executive Officer may determine by regulation to be
appropriate.
(4) Demonstration program. The term demonstration program means a
program described in paragraph (c) of this section.
(c) Demonstration programs--(1) Grants.--The Corporation may make
grants to communities and community-based agencies to pay for the
Federal share of establishing and carrying out military installation
conversion demonstration programs, to assist in converting to community
use affected military installations located--
(i) Within the community; or
(ii) Within such distance from the community as the Chief Executive
Officer may by regulation determine to be appropriate.
(2) Duration. In carrying out such a demonstration program, the
community or community-based agency may carry out--
(i) A program of not less than 6 months in duration; or
(ii) A full-time summer program.
(d) Use of Funds--(1) Stipend.--A community or community-based
agency that receives a grant under paragraph (c) of this section to
establish and carry out a project through a demonstration program may
use the funds made available through such grant to pay for a portion of
a stipend for the participants in the project.
(2) Limitation on amount of stipend. The amount of the stipend
provided to a participant under paragraph (d)(1) of this section that
may be paid using assistance provided under this section and using any
other Federal funds may not exceed the lesser of--
(i) 85 percent of the total average annual subsistence allowance
provided to VISTA volunteers under section 105 of the Domestic
Volunteer Service Act of 1973 (42 U.S.C. 4955); and
(ii) 85 percent of the stipend established by the demonstration
program involved.
(e) Participants--(1) Eligibility. A person will be eligible to be
selected as a participant in a project carried out through a
demonstration program if the person is--
(i) Economically disadvantaged and between the ages of 16 and 24,
inclusive;
(ii) In the case of a full-time summer program, economically
disadvantaged and between the ages of 14 and 24; or
(iii) An eligible youth as described in section 423 of the Job
Training Partnership Act (29 U.S.C. 1693).
(2) Participation. Persons desiring to participate in such a
project must enter into an agreement with the sponsor of the project to
participate--
(i) On a full-time or a part-time basis; and
(ii) For the duration referred to in paragraph (f)(2)(iii) of this
section.
(f) Application--(1) In general.--To be eligible to receive a grant
under paragraph (c) of this section, a community or community-based
agency must submit an application to the Corporation at such time, in
such manner, and containing such information as the Chief Executive
Officer may require.
(2) Contents. At a minimum, such application must contain--
(i) A description of the demonstration program proposed to be
conducted by the applicant;
(ii) A proposal for carrying out the program that describes the
manner in which the applicant will--
(A) Provide preservice and inservice training, for supervisors and
participants, that will be conducted by qualified individuals or
qualified organizations;
(B) Conduct an appropriate evaluation of the program; and
(C) Provide for appropriate community involvement in the program;
(iii) Information indicating the duration of the program; and
(iv) An assurance that the applicant will comply with the
nonduplication, nondisplacement and grievance procedure provisions of
part 2540 of this chapter.
(g) Limitation on grant. In making a grant under paragraph (c) of
this section with respect to a demonstration program to assist in
converting an affected military installation, the Corporation will not
make a grant for more than 25 percent of the total cost of the
conversion.
Sec. 2531.20 Special Demonstration Project for the Yukon-Kuskokwim
Delta of Alaska.
(a) Special Demonstration Project for the Yukon-Kuskokwim Delta of
Alaska. The Corporation may award grants to, and enter into contracts
with, organizations to carry out programs that address significant
human needs in the Yukon-Kuskokwim delta region of Alaska.
(b) Application--(1) General requirements. To be eligible to
receive a grant or enter into a contract under paragraph (a) of this
section with respect to a program, an organization must submit an
application to the Corporation at such time, in such manner, and
containing such information as the President may require.
(2) Contents. The application submitted by the organization must,
at a minimum--
(i) Include information describing the manner in which the program
will utilize VISTA volunteers, individuals who have served in the Peace
Corps, and other qualified persons, in partnership with the local
nonprofit organizations known as the Yukon-Kuskokwim Health Corporation
and the Alaska Village Council Presidents;
(ii) Take into consideration--
(A) The primarily noncash economy of the region; and
(B) The needs and desires of residents of the local communities in
the region; and
(iii) Include specific strategies, developed in cooperation with
the Yupi'k speaking population that resides in such communities, for
comprehensive and intensive community development for communities in
the Yukon-Kuskokwim delta region.
Sec. 2531.30 Other innovative and model programs.
(a) The Corporation may support other innovative and model programs
such as the following:
(1) Programs, including programs for rural youth, described in
parts 2515 through 2524 of this chapter;
(2) Employer-based retiree programs;
(3) Intergenerational programs;
(4) Programs involving individuals with disabilities providing
service;
(5) Programs sponsored by Governors; and
(6) Summer programs carried out between May 1 and October 1 (which
may also contain a year-round components).
(b) The Corporation will support innovative service-learning
programs.
PART 2532--TECHNICAL ASSISTANCE, TRAINING, AND OTHER SERVICE
INFRASTRUCTURE-BUILDING ACTIVITIES
Sec.
2532.10 Eligible activities.
Authority: 42 U.S.C. 12501 et seq.
Sec. 2532.20 Eligible activities.
The Corporation may support--either directly or through a grant,
contract or agreement--any activity designed to meet the purposes
described in part 2530 of this chapter. These activities include, but
are not limited to, the following:
(a) Community-based agencies. The Corporation may provide training
and technical assistance and other assistance to project sponsors and
other community-based agencies that provide volunteer placements in
order to improve the ability of such agencies to use participants and
other volunteers in a manner that results in high-quality service and a
positive service experience for the participants and volunteers.
(b) Improve ability to apply for assistance. The Corporation will
provide training and technical assistance, where necessary, to
individuals, programs, local labor organizations, State educational
agencies, State Commissions, local educational agencies, local
governments, community-based agencies, and other entities to enable
them to apply for funding under one of the national service laws, to
conduct high-quality programs, to evaluate such programs, and for other
purposes.
(c) Conferences and materials. The Corporation may organize and
hold conferences, and prepare and publish materials, to disseminate
information and promote the sharing of information among programs for
the purpose of improving the quality of programs and projects.
(d) Peace Corps and VISTA training. The Corporation may provide
training assistance to selected individuals who volunteer to serve in
the Peace Corps or a program authorized under title I of the Domestic
Volunteer Service Act of 1973 (42 U.S.C. 4951 et seq.). The training
will be provided as part of the course of study of the individual at an
institution of higher education, involve service-learning, and cover
appropriate skills that the individual will use in the Peace Corps or
VISTA.
(e) Promotion and recruitment. The Corporation may conduct a
campaign to solicit funds for the National Service Trust and other
programs and activities authorized under the national service laws and
to promote and recruit participants for programs that receive
assistance under the national service laws.
(f) Training. The Corporation may support national and regional
participant and supervisor training, including leadership training and
training in specific types of service and in building the ethic of
civic responsibility.
(g) Research. The Corporation may support research on national
service, including service-learning.
(h) Intergenerational support. The Corporation may assist programs
in developing a service component that combines students, out-of-school
youths, and older adults as participants to provide needed community
services.
(i) Planning coordination. The Corporation may coordinate
community-wide planning among programs and projects.
(j) Youth leadership. The Corporation may support activities to
enhance the ability of youth and young adults to play leadership roles
in national service.
(k) National program identity. The Corporation may support the
development and dissemination of materials, including training
materials, and arrange for uniforms and insignia, designed to promote
unity and shared features among programs that receive assistance under
the national service laws.
(l) Service-learning. The Corporation will support innovative
programs and activities that promote service-learning.
(m) National Youth Service Day.--(1) Designation. April 19, 1994,
and April 18, 1995 are each designated as ``National Youth Service
Day''. The President is authorized and directed to issue a proclamation
calling on the people of the United States to observe the day with
appropriate ceremonies and activities.
(2) Federal activities. In order to observe National Youth Service
Day at the Federal level, the Corporation may organize and carry out
appropriate ceremonies and activities.
(3) Activities. The Corporation may make grants to public or
private nonprofit organizations with demonstrated ability to carry out
appropriate activities, in order to support such activities on National
Youth Service Day.
(n) Clearinghouses.--(1) Authority. The Corporation may establish
clearinghouses, either directly or through a grant or contract. The
service-learning clearinghouse to be established pursuant to part 2518
of this chapter is eligible to apply for a grant under this section. In
addition, public or private nonprofit organizations are eligible to
apply for clearinghouse grants; however, such organizations must have
extensive experience in training, technical assistance and service and/
or volunteer program development, and management and evaluation.
(2) Function. A Clearinghouse may perform the following activities:
(i) Assist entities carrying out State or local community service
programs with needs assessments and planning;
(ii) Conduct research and evaluations concerning community service;
(iii) Provide leadership development and training to State and
local community service program administrators, supervisors, and
participants; and provide training to persons who can provide such
leadership development and training;
(iv) Facilitate communication among entities carrying out community
service programs and participants;
(v) Provide information, curriculum materials, and technical
assistance relating to planning and operation of community service
programs, to States and local entities eligible to receive funds under
this chapter;
(vi) Gather and disseminate information on successful community
service programs, components of such successful programs, innovative
youth skills curriculum, and community service projects;
(vii) Coordinate the activities of the clearinghouse with
appropriate entities to avoid duplication of effort;
(viii) Make recommendations to State and local entities on quality
controls to improve the delivery of community service programs and on
changes in the programs under this chapter; and
(ix) Carry out such other activities as the Chief Executive Officer
determines to be appropriate.
(o) Assistance for Head Start. The Corporation may make grants to,
and enter into contracts and cooperative agreements with, public or
nonprofit private agencies and organizations that receive grants or
contracts under the Foster Grandparent Program (part B of title II of
the Domestic Volunteer Service Act of 1973 (29 U.S.C. 5011 et seq.)),
for projects of the type described in section 211(a) of such Act (29
U.S.C. 5011) operating under memoranda of agreement with the ACTION
Agency, for the purpose of increasing the number of low-income
individuals who provide services under such program to children who
participate in Head Start programs under the Head Start Act (42 U.S.C
9831 et seq).
(p) Other assistance. The Corporation may support other activities
that are consistent with the purposes described in part 2530 of this
chapter.
PART 2533--SPECIAL ACTIVITIES
Sec.
2533.10 National service fellowships.
2533.20 Presidential awards for service.
Authority: 42 U.S.C. 12501 et seq.
Sec. 2533.10 National service fellowships.
The Corporation may award national service fellowships in such a
manner, in such amounts, for such periods, and at such times as it
deems appropriate. National service fellowships, however, will only be
awarded on a competitive basis.
Sec. 2533.20 Presidential awards for service.
The President, acting through the Corporation, may make
Presidential awards for service to individuals providing significant
service, and to outstanding programs. Information about recipients of
such awards will be widely disseminated. The President may provide such
awards to any deserving individual or program, regardless of whether
the individual is serving in a program authorized by this chapter or
whether the program is itself authorized by this chapter. In no
instance, however, may the award be a cash award.
PART 2540--GENERAL ADMINISTRATIVE PROVISIONS
Subpart A--Requirements Concerning the Distribution and Use of
Corporation Assistance
Sec.
2540.100 What restrictions govern the use of Corporation
assistance?
2540.110 Limitation on use of Corporation funds for administrative
costs.
Subpart B--Requirements Directly Affecting the Selection and Treatment
of Participants
2540.200 Under what circumstances may participants be engaged?
2540.210 What provisions exist to ensure that Corporation-supported
programs do not discriminate in the selection of participants and
staff?
2540.220 Under what circumstances and subject to what conditions
are participants in Corporation-assisted projects eligible for
family and medical leave?
2540.230 What grievance procedures must recipients of Corporation
assistance establish?
Subpart C--Other Requirements for Recipients of Corporation Assistance
2540.300 What must be included in State reports to the Commission?
2540.310 Must programs that receive Corporation assistance
establish standards of conduct?
2540.320 How are participant benefits treated?
Subpart D--Suspension and Termination of Corporation Assistance
2540.400 Under what circumstances will the Corporation suspend or
terminate a grant or contract?
Authority: 42 U.S.C. 12501 et seq.
Subpart A--Requirements Concerning the Distribution and Use of
Corporation Assistance
Sec. 2540.100 What restrictions govern the use of Corporation
assistance?
(a) Supplantation. Corporation assistance may not be used to
replace State and local funding streams that had been used to support
programs of the type eligible to receive Corporation support. For any
given program, this condition will be satisfied if the aggregate non-
Federal expenditure for that program in the fiscal year that support is
to be provided is not less than the previous fiscal year.
(b) Religious use. Corporation assistance may not be used to
provide religious instruction, conduct worship services, or engage in
any form of proslytization.
(c) Political activity. Corporation assistance may not be used by
program participants or staff to assist, promote, or deter union
organizing; or finance, directly or indirectly, any activity designed
to influence the outcome of a Federal, State or local election to
public office.
(d) Contracts or collective bargaining agreements. Corporation
assistance may not be used to impair existing contracts for services or
collective bargaining agreements.
(e) Nonduplication. Corporation assistance may not be used to
duplicate an activity that is already available in the locality of a
program. And, unless the requirements of paragraph (f) of this section
are met, Corporation assistance will not be provided to a private
nonprofit entity to conduct activities that are the same or
substantially equivalent to activities provided by a State or local
government agency that such entity resides in.
(f) Nondisplacement. (1) An employer may not displace an employee
or position, including partial displacement such as reduction in hours,
wages, or employment benefits, as a result of the use by such employer
of a participant in a program receiving Corporation assistance.
(2) A service opportunity will not be created under this title that
will infringe in any manner on the promotional opportunity of an
employed individual.
(3) A participant in a program receiving Corporation assistance may
not perform any services or duties or engage in activities that would
otherwise be performed by an employee as part of the assigned duties of
such employee.
(4) A participant in any program receiving assistance under this
chapter may not perform any services or duties, or engage in
activities, that--
(i) will supplant the hiring of employed workers; or
(ii) are services, duties, or activities with respect to which an
individual has recall rights pursuant to a collective bargaining
agreement or applicable personnel procedures.
(5) A participant in any program receiving assistance under this
title may not perform services or duties that have been performed by or
were assigned to any--
(i) presently employed worker;
(ii) employee who recently resigned or was discharged;
(iii) employee who is subject to a reduction in force or who has
recall rights pursuant to a collective bargaining agreement or
applicable personnel procedures;
(iv) employee who is on leave (terminal, temporary, vacation,
emergency, or sick); or
(v) employee who is on strike or who is being locked out.
Sec. 2540.110 Limitation on use of Corporation funds for
administrative costs.
Not more than five percent of the amount of assistance provided to
the original recipient of any grant or any transfer of assistance from
the Corporation in any fiscal year may be used to pay for
administrative costs incurred by--
(a) The original recipient of assistance; and
(b) Any subgrantee of that recipient.
Subpart B--Requirements Directly Affecting the Selection and
Treatment of Participants
Sec. 2540.200 Under what circumstances may participants be engaged?
A State may not engage a participant to serve in any program that
receives Corporation assistance unless and until amounts have been
appropriated under section 501 of the Act (42 U.S.C. 12681) for the
provision of AmeriCorps educational awards and for the payment of other
necessary expenses and costs associated with such participant.
Sec. 2540.210 What provisions exist to ensure that Corporation-
supported programs do not discriminate in the selection of participants
and staff?
(a) An individual with responsibility for the operation of a
project that receives Corporation assistance may not discriminate
against a participant in, or member of the staff of, such project on
the basis of race, color, national origin, sex, age, or political
affiliation of such participant or member, or on the basis of
disability, if the participant or member is a qualified individual with
a disability.
(b) Any Corporation assistance constitutes Federal financial
assistance for purposes of title VI of the Civil Rights Act of 1964 (42
U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20
U.S.C. 1681 et seq.), section 504 of the Rehabilitation Act of 1973 (29
U.S.C. 794), and the Age Discrimination Act of 1975 (42 U.S.C. 6101 et
seq.), and constitutes Federal financial assistance to an education
program or activity for purposes of the Education Amendments of 1972
(20 U.S.C. 1681 et seq.).
(c) An individual with responsibility for the operation of a
project that receives Corporation assistance may not discriminate on
the basis of religion against a participant in such project or a member
of the staff of such project who is paid with Corporation funds. This
provision does not apply to the employment (with Corporation
assistance) of any staff member of a Corporation-supported project who
was employed with the organization operating the project on the date
the Corporation grant was awarded.
Sec. 2540.220 Under what circumstances and subject to what conditions
are participants in Corporation-assisted programs eligible for family
and medical leave?
(a) Participants in State, local, or private nonprofits programs. A
participant in a State, local, or private nonprofit program receiving
support from the Corporation is considered an eligible employee of the
program's project sponsor under the Family and Medical Leave Act if--
(1) The participant has served for at least 12 months and 1,250
hours during the year preceding the start of the leave; and
(2) The program's project sponsors engages in commerce or any
industry or activity affecting commerce, and employs at least 50
employees for each working day during 20 or more calendar workweeks in
the current or preceding calendar year.
(b) Participants in Federal programs. Participants in Federal
programs operated by the Corporation or by another Federal agency will
be considered Federal employees for the purposes of the Family and
Medical Leave Act if the participants have completed 12 months of
service and the project sponsor is an employing agency as defined in 5
U.S.C. 6381 et seq.; such participants therefore will be eligible for
the same family and medical leave benefits afforded to such Federal
employees.
(c) General terms and conditions. Participants that qualify as
eligible employees under paragraphs (a) or (b) of this section are
entitled to take up to 12 weeks of unpaid leave during a 12 month
period for any of the following reasons (in the cases of both
paragraphs (c) (1) and (2) of this section. The entitlement to leave
expires 12 months after the birth or placement of such child):
(1) The birth of a child to a participant;
(2) The placement of a child with a participant for adoption or
foster care;
(3) The serious illness of a participant's spouse, child or parent;
or
(4) A participant's serious health condition that makes that
participant unable to perform his or her essential service duties (a
serious health condition is an illness or condition that requires
either inpatient care or continuing treatment by a health care
provider).
(d) Intermittent leave or reduced service. The program, serving as
the project sponsor, may allow a participant to take intermittent leave
or reduce his or her service hours due to the birth of or placement of
a child for adoption or foster care. The participant may also take
leave to care for a seriously ill immediate family member or may take
leave due to his or her own serious illness whenever it is medically
necessary.
(e) Alternate placement. If a participant requests intermittent
leave or a reduced service hours due to a serious illness or a family
member's sickness, and the need for leave is foreseeable based on
planned medical treatment, the program, or project sponsor may
temporarily transfer the participant to an alternative service position
if the participant:
(1) Is qualified for the position; and
(2) Receives the same benefits such as stipend or living allowance
and the position better accommodates the participants recurring periods
of leave.
(f) Certification of cause. A program, or project sponsor may
require that the participant support a leave request with a
certification from the health care provider of the participant or the
participant's family member. If a program sponsor requests a
certification, the participant must provide it in a timely manner.
(g) Continuance of coverage. (1) If a State, local or private
program provides for health insurance for the full-time participant,
the sponsor must continue to provide comparable health coverage at the
same level and conditions that coverage would have been provided for
the duration of the participant's leave.
(2) If the Federal program provides health insurance coverage for
the full-time participant, the sponsor must also continue to provide
the same health care coverage for the duration of the participant's
leave.
(h) Failure to return. If the participant fails to return to the
program at the end of leave for any reason other than continuation,
recurrence or onset of a serious health condition or other
circumstances beyond his or her control, the program may recover the
premium that he or she paid during any period of unpaid leave.
(i) Applicability to term of service. Any absence, due to family
and medical leave, will not be counted towards the participant's term
of service.
Sec. 2540.230 What grievance procedures must recipients of Corporation
assistance establish?
State and local applicants that receive assistance from the
Corporation must establish and maintain a procedure for the filing and
adjudication of grievances from participants, labor organizations, and
other interested individuals concerning programs that receive
assistance from the Corporation. A grievance procedure may include
dispute resolution programs such as mediation, facilitation, assisted
negotiation and neutral evaluation.
(a) Alternative dispute resolution. (1) The aggrieved party may
seek resolution through alternative means of dispute resolution such as
mediation or facilitation. Dispute resolution proceedings must be
initiated within 45 calendar days from the date of the alleged
occurrence. At the initial session of the dispute resolution
proceedings, the party must be advised in writing of his or her right
to file a grievance and right to arbitration. If the matter is
resolved, and a written agreement is reached, the party will agree to
forego filing a grievance in the matter under consideration.
(2) If mediation, facilitation, or other dispute resolution
processes are selected, the process must be aided by a neutral party
who, with respect to an issue in controversy, functions specifically to
aid the parties in resolving the matter through a mutually achieved and
acceptable written agreement. The neutral party may not compel a
resolution. Proceedings before the neutral party must be informal, and
the rules of evidence will not apply. With the exception of a written
and agreed upon dispute resolution agreement, the proceeding must be
confidential.
(b) Grievance procedure for unresolved complaints. If the matter is
not resolved within 30 calendar days from the date the informal dispute
resolution process began, the neutral party must again inform the
aggrieving party of his or her right to file a formal grievance. In the
event an aggrieving party files a grievance, the neutral may not
participate in the formal complaint process. In addition, no
communication or proceedings of the informal dispute resolution process
may be referred to or introduced into evidence at the grievance and
arbitration hearing. The advisory decision may not be binding unless
both parties agree. Grievances that allege fraud or criminal activity
must immediately be brought to the attention of the Corporation's
inspector general.
(c) Time limitations. Except for a grievance that alleges fraud or
criminal activity, a grievance must be made no later than one year
after the date of the alleged occurrence. If a hearing is held on a
grievance, it must be conducted no later than 30 calendar days after
the filing of such grievance. A decision on any such grievance must be
made no later than 60 calendar days after the filing of the grievance.
(d) Arbitration. If there is an adverse decision against the party
who filed the grievance, or 60 calendar days after the filing of a
grievance no decision has been reached, the filing party may submit the
grievance to binding arbitration before a qualified arbitrator who is
jointly selected and independent of the interested parties. If the
parties cannot agree on an arbitrator within 15 calendar days after
receiving a request from one of the grievance parties, the Corporations
Chief Executive Officer will appoint an arbitrator from a list of
qualified arbitrators. An arbitration proceeding must be held no later
than 45 calendar days after the request for arbitration. If the
arbitrator is appointed by the Chief Executive Officer, the proceeding
must occur no later than 30 calendar days after the arbitrators
appointment. A decision must be made by the arbitrator no later than 30
calendar days after the date the arbitration proceeding begins. The
cost of the arbitration proceeding must be divided evenly between the
parties to the arbitration. If, however, a participant, labor
organization, or other interested individual prevails under a binding
arbitration proceeding, the State or local applicant that is a party to
the grievance must pay the total cost of the proceeding and the
attorneys fees of the prevailing party.
(e) Suspension of placement. If a grievance is filed regarding a
proposed placement of a participant in a program that receives
assistance under this chapter, such placement must not be made unless
the placement is consistent with the resolution of the grievance.
(f) Remedies. In general, remedies for a grievance filed include
suspension or termination of payments for assistance under this
chapter, and prohibition of a placement of a participant, and in
grievance cases where there is a violation of nonduplication or
nondisplacement requirements and the employer of the displaced employee
is the recipient of Corporation assistance, the displaced employee
must--
(1) Be reinstated to the position he or she held prior to the
displacement;
(2) Be paid lost wages and benefits;
(3) Regain any other relevant terms, conditions and privileges of
employment; and
(4) Obtain any equitable relief that is necessary to correct any
violation of the nonduplication or nondisplacement requirements or to
make the displaced employee whole.
(g) Suspension or termination of assistance. The Corporation may
suspend or terminate payments for assistance under this chapter.
(h) Effect of noncompliance with arbitration. A suit to enforce
arbitration awards may be brought in any Federal district court having
jurisdiction over the parties without regard to the amount in
controversy or the parties' citizenship.
Subpart C--Other Requirements for Recipients of Corporation
Assistance
Sec. 2540.300 What must be included in State reports to the
Commission?
(a) In general. Each State receiving assistance under this title
must prepare and submit, to the Corporation, an annual report
concerning the use of assistance provided under this title and the
status of the national and community service programs that receive
assistance under such title in such State.
(b) Local grantees. Each State may require local grantees that
receive assistance under this title to supply such information to the
State as is necessary to enable the State to complete the report
required under paragraph (a) of this section, including a comparison of
actual accomplishments with the goals established for the program, the
number of participants in the program, the number of service hours
generated, and the existence of any problems, delays or adverse
conditions that have affected or will affect the attainment of program
goals.
(c) Report demonstrating compliance--(1) In general. Each State
receiving assistance under this title must include information in the
report required under paragraph (a) of this section that demonstrates
the compliance of the State with the provisions of this chapter.
(2) Local grantees. Each State may require local grantees to supply
such information to the State as is necessary to enable the State to
comply with the requirement of paragraph (a) of this section.
(d) Availability of report. Reports submitted under paragraph (a)
of this section must be made available to the public on request.
Sec. 2540.310 Must programs that receive Corporation assistance
establish standards of conduct?
Yes. Programs that receive assistance under this title must
establish and stringently enforce standards of conduct at the program
site to promote proper moral and disciplinary conditions.
Sec. 2540.320 How are participant benefits treated?
Section 142(b) of the Job Training Partnership Act (29 U.S.C.
1552(b)) shall apply to the programs conducted under this chapter as if
such programs were conducted under the Job Training Partnership Act (29
U.S.C. 1501 et seq.).
Subpart D--Suspension and Termination of Corporation Assistance
Sec. 2540.400 Under what circumstances will the Corporation suspend or
terminate a grant or contract?
(a) Suspension of a grant or contract. In emergency situations, the
Corporation may suspend a grant or contract for not more than 30
calendar days. Examples of such situations may include, but are not
limited to:
(1) Serious risk to persons or property;
(2) Violations of Federal, State or local criminal statutes; and
(3) Material violation(s) of the grant or contract that are
sufficiently serious that they outweigh the general policy in favor of
advance notice and opportunity to show cause.
(b) Termination of a grant or contract. The Corporation may
terminate or revoke assistance for failure to comply with applicable
terms and conditions of this chapter. However, the Corporation must
provide the recipient reasonable notice and opportunity for a full and
fair hearing, subject to the following conditions:
(1) The Corporation will notify a recipient of assistance by letter
or telegram that the Corporation intends to terminate or revoke
assistance, either in whole or in part, unless the recipient shows good
cause why such assistance should not be terminated or revoked. In this
communication, the grounds and the effective date for the proposed
termination or revocation will be described. The recipient will be
given at least 7 calendar days to submit written material in opposition
to the proposed action.
(2) The recipient may request a hearing on a proposed termination
or revocation. Providing five days notice to the recipient, the
Corporation may authorize the conduct of a hearing or other meetings at
a location convenient to the recipient to consider the proposed
suspension or termination. A transcript or recording must be made of a
hearing conducted under this section and be available for inspection by
any individual.
[FR Doc. 94-322 Filed 1-6-94; 8:45 am]
BILLING CODE 6820-BA-P
Complete official Federal Register PDF
FR Doc. 94-276 Outer Continental Shelf Air Regulations
[Federal Register Volume 59, Number 5 (Friday, January 7, 1994)]
[Proposed Rules]
[Pages 994-997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-276]
[[Page Unknown]]
[Federal Register: January 7, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 55
[FRL-4822-1]
Outer Continental Shelf Air Regulations
AGENCY: Environmental Protection Agency (``EPA'').
ACTION: Notice of proposed rulemaking (``NPR'')--consistency update.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to update a portion of the Outer Continental
Shelf (``OCS'') Air Regulations. Requirements applying to OCS sources
located within 25 miles of states' seaward boundaries must be updated
periodically to remain consistent with the requirements of the
corresponding onshore area (``COA''), as mandated by section 328(a)(1)
of the Clean Air Act (``the Act''), the Clean Air Act Amendments of
1990. The portion of the OCS air regulations that is being updated
pertains to the requirements for OCS sources for which the San Luis
Obispo County Air Pollution Control District (San Luis Obispo County
APCD), the Santa Barbara County Air Pollution Control District (Santa
Barbara County APCD), and the Ventura County Air Pollution Control
District (Ventura County APCD) are the designated COAs. The OCS
requirements for the above Districts, contained in the Technical
Support Document, are proposed to be incorporated by reference into the
Code of Federal Regulations and are listed in the appendix to the OCS
air regulations.
DATES: Comments on the proposed update must be received on or before
February 7, 1994.
ADDRESSES: Comments must be mailed (in duplicate if possible) to: EPA
Air Docket (A-5), Attn: Docket No. A-93-16, Environmental Protection
Agency, Air and Toxics Division, Region 9, 75 Hawthorne St., San
Francisco, CA 94105.
Docket: Supporting information used in developing the proposed
notice and copies of the documents EPA is proposing to incorporate by
reference are contained in Docket No. A-93-16 (Section III). This
docket is available for public inspection and copying Monday--Friday
during regular business hours at the following locations: EPA Air
Docket (A-5), Attn: Docket No. A-93-16, Environmental Protection
Agency, Air and Toxics Division, Region 9, 75 Hawthorne St., San
Francisco, CA 94105. EPA Air Docket (LE-131), Attn: Air Docket No. A-
93-16, Environmental Protection Agency, 401 M Street SW, Room M-1500,
Washington, DC 20460. A reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Christine Vineyard, Air and Toxics
Division (A-5-3), U.S. EPA Region 9, 75 Hawthorne Street, San
Francisco, CA 94105. (415) 744-1195.
SUPPLEMENTARY INFORMATION:
Background
On September 4, 1992, EPA promulgated 40 CFR part 55,1 which
established requirements to control air pollution from OCS sources in
order to attain and maintain federal and state ambient air quality
standards and to comply with the provisions of part C of title I of the
Act. Part 55 applies to all OCS sources offshore of the States except
those located in the Gulf of Mexico west of 87.5 degrees longitude.
Section 328 of the Act requires that for such sources located within 25
miles of a state's seaward boundary, the requirements shall be the same
as would be applicable if the sources were located in the COA. Because
the OCS requirements are based on onshore requirements, and onshore
requirements may change, section 328(a)(1) requires that EPA update the
OCS requirements as necessary to maintain consistency with onshore
requirements.
---------------------------------------------------------------------------
\1\The reader may refer to the Notice of Proposed Rulemaking,
December 5, 1991 (56 FR 63774), and the preamble to the final rule
promulgated September 4, 1992 (57 FR 40792) for further background
and information on the OCS regulations.
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Pursuant to Sec. 55.12 of the OCS rule, consistency reviews will
occur (1) at least annually; (2) upon receipt of a Notice of Intent
(NOI) under Sec. 55.4; and (3) when a state or local agency submits a
rule to EPA to be considered for incorporation by reference in part 55.
This NPR is being promulgated in response to the submittal of rules by
three local air pollution control agencies. Public comments received in
writing within 30 days of publication of this notice will be considered
by EPA before promulgation of the final updated rule.
Section 328(a) of the Act requires that EPA establish requirements
to control air pollution from OCS sources located within 25 miles of
states' seaward boundaries that are the same as onshore requirements.
To comply with this statutory mandate, EPA must incorporate applicable
onshore rules into part 55 as they exist onshore. This limits EPA's
flexibility in deciding which requirements will be incorporated into
part 55 and prevents EPA from making substantive changes to the
requirements it incorporates. As a result, EPA may be incorporating
rules into part 55 that do not conform to all of EPA's state
implementation plan (SIP) guidance or certain requirements of the Act.
Consistency updates may result in the inclusion of state or local rules
or regulations into part 55, even though the same rules may ultimately
be disapproved for inclusion as part of the SIP. Inclusion in the OCS
rule does not imply that a rule meets the requirements of the Act for
SIP approval, nor does it imply that the rule will be approved by EPA
for inclusion in the SIP.
EPA Evaluation and Proposed Action
In updating 40 CFR part 55, EPA reviewed the state and local rules
submitted for inclusion in part 55 to ensure that they are rationally
related to the attainment or maintenance of federal or state ambient
air quality standards or part C of title I of the Act, that they are
not designed expressly to prevent exploration and development of the
OCS and that they are applicable to OCS sources. 40 CFR 55.1. EPA has
also evaluated the rules to ensure they are not arbitrary or
capricious. 40 CFR 55.12 (e). In addition, EPA has excluded
administrative or procedural rules.2
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\2\Upon delegation the onshore area will use its administrative
and procedural rules as onshore. In those instances where EPA does
not delegate authority to implement and enforce part 55, EPA will
use its own administrative and procedural requirements to implement
the substantive requirements. 40 CFR 55.14 (c)(4).
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A. After review of the rules submitted by the San Luis Obispo
County APCD against the criteria set forth above and in 40 CFR part 55,
EPA is proposing to make the following rules applicable to OCS sources
for which the San Luis Obispo County APCD is designated as the COA.
None of the existing OCS requirements were deleted. The following rules
were submitted as amendments to existing requirements:
Rule 105 Definitions (Adopted 10/6/93)
Rule 204 Requirements, except B.3 and C. (Adopted 8/10/93)
Sections B.3 and C conflict with the language of part 55.
Rule 213 Calculations, except E.4 and F. (Adopted 8/10/93)
Sections E.4 and F are District administrative procedures.
Rule 305 Fees for Major Non-Vehicular Sources (title change--
Adopted 9/15/92)
Rule 417 Control of Fugitive Emissions of Volatile Organic
Compounds (Adopted 2/9/93)
B. After review of the rules submitted by the Santa Barbara County
APCD against the criteria set forth above and in 40 CFR part 55, EPA is
proposing to make the following rule applicable to OCS sources for
which the Santa Barbara County APCD is designated as the COA. None of
the existing OCS requirements were deleted.
The following new rule was submitted by the District to be added:
Rule 212 Emission Statements (Adopted 10/20/92)
C. After review of the rules submitted by Ventura County APCD
against the criteria set forth above and in 40 CFR part 55, EPA is
proposing to make the following rules applicable to OCS sources for
which Ventura County APCD is designated as the COA. None of the
existing OCS requirements were deleted.
The following rules were submitted as amendments to existing
requirements:
Rule 23 Exemptions from Permit (Adopted 6/8/93)
Rule 71 Crude Oil and ROC Liquids (Adopted 6/8/93)
Rule 71.4 Petroleum Sumps, Pits, Ponds and Well Cellars (Adopted 6/
8/93)
Rule 72 NSPS (Adopted 7/13/93)
Rule 74.9 Stationary Internal Combustion Engines (Adopted 12/3/91)
Rule 74.15 Boilers, Steam Generators and Process Heaters (5MM BTUs
and greater) (Adopted 12/3/91)
The following new rules were submitted by the District to be added:
Rule 74.15.1 Boilers, Steam Generators and Process Heaters (1-5MM
BTUs) (Adopted 5/11/93)
Rule 74.20 Adhesives and Sealants (Adopted 6/8/93)
The following rule was submitted by the District but will not be
included:
Rule 42.M Air Toxics ``Hot Spots'' Program Fees (Adopted 5/4/93)
This is an administrative rule for requirements that are not
related to the attainment and maintenance of ambient air quality
standards or part C of title I of the Act and will not be incorporated
into part 55.
Administrative Requirements
A. Executive Order
The Office of Management and Budget exempted this rule from the
requirements of Section 3 of Executive Order 12291. This exemption
continues in effect under Executive Order 12866 which superseded
Executive Order 12291 on September 30, 1993.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 requires each federal agency
to perform a Regulatory Flexibility Analysis for all rules that are
likely to have a ``significant impact on a substantial number of small
entities.'' Small entities include small businesses, organizations, and
governmental jurisdictions.
As was stated in the final regulation, the OCS rule does not apply
to any small entities, and the structure of the rule averts direct
impacts and mitigates indirect impacts on small entities. This
consistency update merely incorporates onshore requirements into the
OCS rule to maintain consistency with onshore regulations as required
by section 328 of the Act and does not alter the structure of the rule.
The EPA certifies that this notice of proposed rulemaking will not
have a significant impact on a substantial number of small entities.
C. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in the final OCS
rulemaking dated September 4, 1992 under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB
control number 2060-0249. This consistency update does not add any
further requirements.
List of Subjects in 40 CFR Part 55
Environmental protection, Administrative practice and procedures,
Air pollution control, Hydrocarbons, Incorporation by reference,
Intergovernmental relations, Nitrogen dioxide, Nitrogen oxides, Outer
Continental Shelf, Ozone, Particulate matter, Permits, Reporting and
recordkeeping requirements, Sulfur oxides.
Dated: December 14, 1993.
John Wise,
Acting Regional Administrator.
Title 40 of the Code of Federal Regulations, part 55, is proposed
to be amended as follows:
PART 55--[AMENDED]
1. The authority citation for part 55 continues to read as follows:
Authority: Section 328 of the Clean Air Act (42 U.S.C. 7401, et
seq.) as amended by Public Law 101-549.
2. Section 55.14 is proposed to be amended by revising paragraphs
(e)(3)(ii)(E), (e)(3)(ii)(F), and (e)(3)(ii)(H) to read as follows:
Sec. 55.14 Requirements that apply to OCS sources located within 25
miles of states' seaward boundaries, by state.
* * * * *
(e) * * *
(3) * * *
(ii) * * *
(E) San Luis Obispo County Air Pollution Control District
Requirements Applicable to OCS Sources.
(F) Santa Barbara County Air Pollution Control District
Requirements Applicable to OCS Sources.
* * * * *
(H) Ventura County Air Pollution Control District Requirements
Applicable to OCS Sources.
* * * * *
4. Appendix A to 40 CFR part 55 is proposed to be amended by
revising paragraphs (b)(5), (b)(6), and (b)(8) under the heading
California to read as follows:
Appendix A to 40 CFR Part 55--Listing of State and Local
Requirements Incorporated by Reference Into Part 55, by State
* * * * *
(California) * * *
(b) * * *
(5) The following requirements are contained in San Luis Obispo
County Air Pollution Control District Requirements Applicable to OCS
Sources:
Rule 103 Conflicts Between District, State and Federal Rules
(Adopted 8/6/76)
Rule 104 Action in Areas of High Concentration (Adopted 7/5/77)
Rule 105 Definitions (Adopted 10/6/93)
Rule 106 Standard Conditions (Adopted 8/6/76)
Rule 108 Severability (Adopted 11/13/84)
Rule 113 Continuous Emissions Monitoring, except F. (Adopted 7/5/
77)
Rule 201 Equipment not Requiring a Permit, except A.1.b. (Adopted
11/5/91)
Rule 202 Permits, except A.4. and A.8. (Adopted 11/5/91)
Rule 203 Applications, except B. (Adopted 11/5/91)
Rule 204 Requirements, except B.3. and C. (Adopted 8/10/93)
Rule 209 Provision for Sampling and Testing Facilities (Adopted 11/
5/91)
Rule 210 Periodic Inspection, Testing and Renewal of Permits to
Operate (Adopted 11/5/91)
Rule 213 Calculations, except E.4. and F. (Adopted 8/10/93)
Rule 302 Schedule of Fees (Adopted 9/15/92)
Rule 305 Fees for Major Non-Vehicular Sources (title change--
Adopted 9/15/92)
Rule 401 Visible Emissions (Adopted 8/6/76)
Rule 403 Particulate Matter Emissions (Adopted 8/6/76)
Rule 404 Sulfur Compounds Emission Standards, Limitations and
Prohibitions (Adopted 12/6/76)
Rule 405 Nitrogen Oxides Emission Standards, Limitations and
Prohibitions (Adopted 11/13/84)
Rule 406 Carbon Monoxide Emission Standards, Limitations and
Prohibitions (Adopted 11/14/84)
Rule 407 Organic Material Emission Standards, Limitations and
Prohibitions (Adopted 1/10/89)
Rule 411 Surface Coating of Metal Parts and Products (Adopted 1/10/
89)
Rule 416 Degreasing Operations (Adopted 6/18/79)
Rule 417 Control of Fugitive Emissions of Volatile Organic
Compounds (Adopted 2/9/93)
Rule 422 Refinery Process Turnarounds (Adopted 6/18/79)
Rule 501 General Burning Provisions (Adopted 1/10/89)
Rule 503 Incinerator Burning, except B.1.a. (Adopted 2/7/89)
Rule 601 New Source Performance Standards (Adopted 9/4/90)
(6) The following requirements are contained in Santa Barbara
County Air Pollution Control District Requirements Applicable to OCS
Sources:
Rule 102 Definitions (Adopted 7/30/91)
Rule 103 Severability (Adopted 10/23/78)
Rule 201 Permits Required (Adopted 7/2/79)
Rule 202 Exemptions to Rule 201 (Adopted 3/10/92)
Rule 203 Transfer (Adopted 10/23/78)
Rule 204 Applications (Adopted 10/23/78)
Rule 205 Standards for Granting Applications (Adopted 7/30/91)
Rule 206 Conditional Approval of Authority to Construct or Permit
to Operate (Adopted 10/15/91)
Rule 207 Denial of Application (Adopted 10/23/78)
Rule 210 Fees (Adopted 5/7/91)
Rule 212 Emission Statements (Adopted 10/20/92)
Rule 301 Circumvention (Adopted 10/23/78)
Rule 302 Visible Emissions (Adopted 10/23/78)
Rule 304 Particulate Matter-Northern Zone (Adopted 10/23/78)
Rule 305 Particulate Matter Concentration-Southern Zone (Adopted
10/23/78)
Rule 306 Dust and fumes-Northern Zone (Adopted 10/23/78)
Rule 307 Particulate Matter Emission Weight Rate-Southern Zone
(Adopted 10/23/78)
Rule 308 Incinerator Burning (Adopted 10/23/78)
Rule 309 Specific Contaminants (Adopted 10/23/78)
Rule 310 Odorous Organic Sulfides (Adopted 10/23/78)
Rule 311 Sulfur Content of Fuels (Adopted 10/23/78)
Rule 312 Open Fires (Adopted 10/2/90)
Rule 317 Organic Solvents (Adopted 10/23/78)
Rule 318 Vacuum Producing Devices or Systems-Southern Zone (Adopted
10/23/78)
Rule 321 Control of Degreasing Operations (Adopted 7/10/90)
Rule 322 Metal Surface Coating Thinner and Reducer (Adopted 10/23/
78)
Rule 323 Architectural Coatings (Adopted 2/20/90)
Rule 324 Disposal and Evaporation of Solvents (Adopted 10/23/78)
Rule 325 Storage of Petroleum and Petroleum Products (Adopted 12/
10/91)
Rule 326 Effluent Oil Water Separators (Adopted 10/23/78)
Rule 327 Organic Liquid Cargo Tank Vessel Loading (Adopted 12/16/
85)
Rule 328 Continuous Emission Monitoring (Adopted 10/23/78)
Rule 330 Surface Coating of Miscellaneous Metal Parts and Products
(Adopted 11/13/90)
Rule 331 Fugitive Emissions Inspection and Maintenance (Adopted 12/
10/91)
Rule 332 Petroleum Refinery Vacuum Producing Systems. Wastewater
Separators and Process Turnarounds (Adopted 6/11/79)
Rule 333 Control of Emissions from Reciprocating Internal
Combustion Engines (12/10/91)
Rule 342 Control of Oxides of Nitrogen (NOx from Boilers, Steam
Generators and Process Heaters) (03/10/92)
Rule 505 Breakdown Conditions Sections A., B.1., and D. only
(Adopted 10/23/78)
Rule 603 Emergency Episode Plans (Adopted 6/15/81)
* * * * *
(8) The following requirements are contained in Ventura County Air
Pollution Control District Requirements Applicable to OCS Sources:
Rule 2 Definitions (Adopted 12/15/92)
Rule 5 Effective Date (Adopted 5/23/72)
Rule 6 Severability (Adopted 11/21/78)
Rule 7 Zone Boundaries (Adopted 6/14/77)
Rule 10 Permits Required (Adopted 7/5/83)
Rule 11 Application Contents (Adopted 8/15/78)
Rule 12 Statement by Application Preparer (Adopted 6/16/87)
Rule 13 Statement by Applicant (Adopted 11/21/78)
Rule 14 Trial Test Runs (Adopted 5/23/72)
Rule 15 Permit Issuances (Adopted 7/5/83)
Rule 16 Permit Contents (Adopted 12/2/80)
Rule 18 Permit to Operate Application (Adopted 8/17/76)
Rule 19 Posting of Permits (Adopted 5/23/72)
Rule 20 Transfer of Permit (Adopted 5/23/72)
Rule 21 Expiration of Applications and Permits (Adopted 6/23/81)
Rule 23 Exemptions from Permits (Adopted 6/8/93)
Rule 24 Source Recordkeeping, Reporting, and Emission Statements
(Adopted 09/15/92)
Rule 26 New Source Review (Adopted 10/22/91)
Rule 26.1 New Source Review--Definitions (Adopted 10/22/91)
Rule 26.2 New Source Review--Requirements (Adopted 10/22/91)
Rule 26.3 New Source Review--Exemptions (Adopted 10/22/91)
Rule 26.6 New Source Review--Calculations (Adopted 10/22/91)
Rule 26.8 New Source Review--Permit To Operate (Adopted 10/22/91)
Rule 26.10 New Source Review--PSD (Adopted 10/22/91)
Rule 28 Revocation of Permits (Adopted 7/18/72)
Rule 29 Conditions on Permits (Adopted 10/22/91)
Rule 30 Permit Renewal (Adopted 5/30/89)
Rule 32 Breakdown Conditions: Emergency Variances, A., B.1., and D.
only. (Adopted 2/20/79)
Appendix II-A Information Required for Applications to the Air
Pollution Control District
Appendix II-B Best Available Control Technology (BACT) Tables
Rule 42 Permit Fees (Adopted 12/22/92)
Rule 44 Exemption Evaluation Fee (Adopted 1/8/91)
Rule 45 Plan Fees (Adopted 6/19/90)
Rule 45.2 Asbestos Removal Fees (Adopted 8/4/92)
Rule 50 Opacity (Adopted 2/20/79)
Rule 52 Particulate Matter--Concentration (Adopted 5/23/72)
Rule 53 Particulate Matter--Process Weight (Adopted 7/18/72)
Rule 54 Sulfur Compounds (Adopted 7/5/83)
Rule 56 Open Fires (Adopted 5/24/88)
Rule 57 Combustion Contaminants--Specific (Adopted 6/14/77)
Rule 60 New Non-Mobile Equipment--Sulfur Dioxide, Nitrogen Oxides,
and Particulate Matter (Adopted 7/8/72)
Rule 62.7 Asbestos--Demolition and Renovation (Adopted 6/16/92)
Rule 63 Separation and Combination of Emissions (Adopted 11/21/78)
Rule 64 Sulfur Content of Fuels (Adopted 7/5/83)
Rule 66 Organic Solvents (Adopted 11/24/87)
Rule 67 Vacuum Producing Devices (Adopted 7/5/83)
Rule 68 Carbon Monoxide (Adopted 6/14/77)
Rule 71 Crude Oil and Reactive Organic Compound Liquids (Adopted 6/
8/93)
Rule 71.1 Crude Oil Production and Separation (Adopted 6/16/92)
Rule 71.2 Storage of Reactive Organic Compound Liquids (Adopted 9/
26/89)
Rule 71.3 Transfer of Reactive Organic Compound Liquids (Adopted 6/
16/92)
Rule 71.4 Petroleum Sumps, Pits, Ponds, and Well Cellars (Adopted
6/8/93)
Rule 72 New Source Performance Standards (NSPS) (Adopted 7/13/93)
Rule 74 Specific Source Standards (Adopted 7/6/76)
Rule 74.1 Abrasive Blasting (Adopted 11/12/91)
Rule 74.2 Architectural Coatings (Adopted 08/11/92)
Rule 74.6 Surface Cleaning and Degreasing (Adopted 5/8/90)
Rule 74.6.1 Cold Cleaning Operations (Adopted 9/12/89)
Rule 74.6.2 Batch Loaded Vapor Degreasing Operations (Adopted 9/12/
89)
Rule 74.7 Fugitive Emissions of Reactive Organic Compounds at
Petroleum Refineries and Chemical Plants (Adopted 1/10/89)
Rule 74.8 Refinery Vacuum Producing Systems, Waste-water Separators
and Process Turnarounds (Adopted 7/5/83)
Rule 74.9 Stationary Internal Combustion Engines (Adopted 12/3/91)
Rule 74.10 Components at Crude Oil Production Facilities and
Natural Gas Production and Processing Facilities (Adopted 6/16/92)
Rule 74.11 Natural Gas-Fired Residential Water Heaters--Control of
NOx (Adopted 4/9/85)
Rule 74.12 Surface Coating of Metal Parts and Products (Adopted 11/
17/92)
Rule 74.15 Boilers, Steam Generators and Process Heaters (5MM BTUs
and greater) (Adopted 12/3/91)
Rule 74.15.1 Boilers, Steam Generators and Process Heaters (1-5MM
BTUs) (Adopted 5/11/93)
Rule 74.16 Oil Field Drilling Operations (Adopted 1/8/91)
Rule 74.20 Adhesives and Sealants (Adopted 6/8/93)
Rule 75 Circumvention (Adopted 11/27/78)
Appendix IV-A Soap Bubble Tests
Rule 100 Analytical Methods (Adopted 7/18/72)
Rule 101 Sampling and Testing Facilities (Adopted 5/23/72)
Rule 102 Source Tests (Adopted 11/21/78)
Rule 103 Stack Monitoring (Adopted 6/4/91)
Rule 154 Stage 1 Episode Actions (Adopted 9/17/91)
Rule 155 Stage 2 Episode Actions (Adopted 9/17/91)
Rule 156 Stage 3 Episode Actions (Adopted 9/17/91)
Rule 158 Source Abatement Plans (Adopted 9/17/91)
Rule 159 Traffic Abatement Procedures (Adopted 9/17/91)
* * * * *
[FR Doc. 94-276 Filed 1-6-94; 8:45 am]
BILLING CODE 6050-50-P
Complete official Federal Register PDF
FR Doc. 94-275 Approval and Promulgation of Air Quality Implementation Plans; West Virginia: Limited Approval and Disapproval of PM-10 Implementation Plan for the Follansbee Area
[Federal Register Volume 59, Number 5 (Friday, January 7, 1994)]
[Proposed Rules]
[Pages 988-993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-275]
[[Page Unknown]]
[Federal Register: January 7, 1994]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WV 5-1-5149 A1-FRL-4823-2]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia: Limited Approval and Disapproval of PM-10 Implementation
Plan for the Follansbee Area
AGENCY: U.S. Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: EPA today proposes limited approval and limited disapproval of
the State Implementation Plan (SIP) submitted by the State of West
Virginia for the purpose of bringing about the attainment of the
national ambient air quality standard (NAAQS) for particulate matter
with an aerodynamic diameter less than or equal to a nominal 10
micrometers (PM-10). The implementation plan was submitted by the State
to satisfy certain federal requirements for an approvable nonattainment
area PM-10 SIP for a portion of the Follansbee area, Brooke County,
West Virginia. The Act required that States make certain submittals by
November 15, 1991 for those areas designated nonattainment and
classified as moderate for PM-10 upon enactment (the ``initial moderate
nonattainment areas''). By today's action, EPA is proposing limited
approval and limited disapproval of the PM-10 SIP for the Follansbee,
West Virginia area.
DATES: Comments must be received in writing on or before February 7,
1994. Public comments on this document are requested and will be
considered before taking final action on this SIP revision.
ADDRESSES: Comments may be mailed to Thomas J. Maslany, Director, Air,
Radiation and Toxics Division, U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, PA 19107. Copies of
the documents relevant to this notice are available for public
inspection during normal business hours at the following locations:
Air, Radiation and Toxics Division, U.S. Environmental Protection
Agency, Region III, 841 Chestnut Building, Philadelphia, PA 19107;
Public Information Reference Unit, U.S. Environmental Protection
Agency, 401 M Street, SW., Washington, DC 20460; and West Virginia
Department of Environmental Protection, Office of Air Quality, 1558
Washington Street, East, Charleston, West Virginia, 25311.
FOR FURTHER INFORMATION CONTACT: Thomas A. Casey, U.S. Environmental
Protection Agency, Region III (3AT14), 841 Chestnut Building,
Philadelphia, PA 19107, (215) 597-2746.
SUPPLEMENTARY INFORMATION:
Background
The air quality planning requirements for moderate PM-10
nonattainment areas are set out in subparts 1 and 4 of Title I of the
Act. The EPA has issued a ``General Preamble'' describing EPA's
preliminary views on how EPA intends to review SIP's and SIP revisions
submitted under Title I of the Act, including those State submittals
containing moderate PM-10 nonattainment area SIP requirements (see
generally 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28,
1992)).
The Follansbee area of Brooke County, along with a portion of
Jefferson County, Ohio near Steubenville, was classified as a Group I
area on the basis of monitored PM-10 violations in Mingo Junction,
Ohio. Upon enactment of the CAAA, all Group I areas (and Group II areas
that had monitored violations before January 1, 1989) were designated
nonattainment by operation of law. A list of these initial
nonattainment areas, including the Follansbee area, was published on
March 15, 1991 (56 FR 11101) with corrections on May 20, 1991 (56 FR
23105).\1\
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\1\The Follansbee, West Virginia nonattainment area was defined
in this notice as the area bounded on the north by the Market Street
Bridge, on the east by West Virginia Route 2, on the south by the
extension of the southern boundary of Steubenville Township,
Jefferson County, Ohio, and on the West by the Ohio/West Virginia
border.
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Those States containing initial moderate PM-10 nonattainment areas
were required to submit, among other things, the following provisions
by November 15, 1991:
1. Provisions to assure that reasonably available control measures
(RACM) (including such reductions in emissions from existing sources in
the area as may be obtained through the adoption, at a minimum, of
reasonably available control technology--RACT) shall be implemented no
later than December 10, 1993;
2. Either a demonstration (including air quality modeling) that the
plan will provide for attainment as expeditiously as practicable but no
later than December 31, 1994 or a demonstration that attainment by that
date is impracticable;
3. Quantitative milestones which are to be achieved every 3 years
and which demonstrate reasonable further progress (RFP) toward
attainment by December 31, 1994; and
4. Provisions to assure that the control requirements applicable to
major stationary sources of PM-10 also apply to major stationary
sources of PM-10 precursors except where the Administrator determines
that such sources do not contribute significantly to PM-10 levels which
exceed the NAAQS in the area. See sections 172(c), 188, and 189 of the
Act.
Some provisions are due at a later date. States with initial
moderate PM-10 nonattainment areas were required to submit a permit
program for the construction and operation of new and modified major
stationary sources of PM-10 by June 30, 1992 (see section 189(a)). Such
States also must submit contingency measures by November 15, 1993 which
become effective without further action by the State or EPA, upon a
determination by EPA that the area has failed to achieve RFP or to
attain the PM-10 NAAQS by the applicable statutory deadline. See
section 172(c)(9) and 57 FR 13543-44.
Responsibility for fulfilling the air quality planning requirements
for the Follansbee and Steubenville areas lies in different states:
West Virginia is responsible for the Follansbee area and Ohio is
responsible for the Steubenville area. The plans are linked in that,
according to their attainment demonstrations, emissions reductions in
both states are necessary to effect attainment in either area. (West
Virginia and Ohio corroborated on parts of the attainment
demonstration; West Virginia prepared much of the emissions inventory,
and Ohio performed the modeling analyses.) The submitted SIP revision
of each State, however, stands alone. Today's proposed rulemaking
applies only to West Virginia's SIP; EPA will act on Ohio's SIP
separately.
While this notice proposes limited disapproval and limited
disapproval of West Virginia's SIP revision, EPA will fully approve the
State's submittal without further notice, if the unapprovable aspects
of the State's submittal are corrected. The rationale for this proposal
is set out both in this notice and in the supporting Technical Support
Document (TSD) which is available at the address indicated below.
Summary of the SIP Revision and Criteria for Proposed Action
1. Procedural Background
The Act requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
EPA. Section 110(a)(2) of the Act provides that each implementation
plan submitted by a State must be adopted after reasonable notice and
public hearing.\2\ Section 110(l) of the Act similarly provides that
each revision to an implementation plan submitted by a State under the
Act must be adopted by such State after reasonable notice and public
hearing.
---------------------------------------------------------------------------
\2\Also section 172(c)(7) of the Act requires that plan
provisions for nonattainment areas meet the applicable provisions of
section 110(a)(2).
---------------------------------------------------------------------------
EPA also must determine whether a submittal is complete and
therefore warrants further EPA review and action (see section 110(k)(1)
and 57 FR 13565). EPA's completeness criteria for SIP submittals are
set out at 40 CFR part 51, appendix V (1991), as amended by 57 FR 42216
(August 26, 1991). EPA attempts to make completeness determinations
within 60 days of receiving a submission. However, a submittal is
deemed complete by operation of law if a completeness determination is
not made by EPA 6 months after receipt of the submission.
The State of West Virginia held a public hearing on October 30,
1991 to solicit public comment on the implementation plan for the
Follansbee nonattainment area. Following the public hearing, the plan
was adopted by the State and signed by the Honorable John M. Ranson,
Secretary, Department of Commerce, Labor & Environmental Resources on
November 12, 1991, and submitted to EPA on November 15, 1991 as a
formal request for revision to the SIP.
The State submittal revision was reviewed by EPA to determine
completeness, in accordance with the completeness criteria set out at
40 CFR part 51, appendix V (1991), as amended by 57 FR 42216 (August
26, 1991). The submittal was determined to be complete, and a letter
dated January 22, 1992 was forwarded to the Governor of West Virginia
indicating the completeness of the submittal and the next steps to be
taken in the review process.
2. Emissions Inventory
Section 172(c)(3) of the Clean Air Act requires that nonattainment
plan provisions include a comprehensive, accurate, current inventory of
actual emissions from all sources of relevant pollutants in the
nonattainment area. This section of the notice describes the adequacy
of West Virginia's inventory of actual emissions as required by section
172(c)(3). The adequacy of the State's inventory of allowable emissions
used as input to the demonstration of attainment (as required by
section 189(a)) is discussed in a subsequent section of this notice.
West Virginia submitted an emissions inventory for base year 1990.
The West Virginia submittal shows that activities related to steel
making and shaping dominate the Follansbee area's emissions inventory.
There were some deficiencies related to the estimation of PM-10
emissions from coke oven batteries. Specifically, the calculations
relating emissions of benzene soluble organics (BSO) to emissions of
PM-10 are in error. The estimation of BSO-related PM-10 emissions
effects estimates of both actual and SIP allowable emissions (and,
consequently, the attainment demonstration). The error in BSO emissions
notwithstanding, the inventory of actual emissions is generally
comprehensive, accurate, and current, and therefore approvable as
meeting the requirements of sections 172(c)(3) and 110(a)(2)(K) of the
Act.\3\ Therefore, EPA is proposing approval of the SIP for the purpose
of satisfying the section 172(c)(3) requirement for an emissions
inventory. A more detailed discussion of the shortcomings in the
inventory of SIP allowable emissions used as input to dispersion models
is presented in section II.C.4 of the TSD.\4\
---------------------------------------------------------------------------
\3\The EPA issued guidance on PM-10 emissions inventories prior
to the enactment of the Clean Air Act Amendments in the form of the
1987 PM-10 SIP Development Guideline. The guidance provided in this
document appears to be consistent with the Act.
\4\Calculations of emissions from leaking doors were also in
error. However, the error in the calculation of emissions from
leaking doors only affects the inventory of SIP allowable emissions
and has no bearing on the section 172(c)(3) requirement for an
inventory of actual emissions.
---------------------------------------------------------------------------
3. RACM (Including RACT)
As noted, the initial moderate PM-10 nonattainment areas must
submit provisions to assure that RACM (including RACT) are implemented
no later than December 10, 1993 (see sections 172(c)(1) and
189(a)(1)(C)). The General Preamble contains a detailed discussion of
EPA's interpretation of the RACM (including RACT) requirement (see 57
FR 13540-45 and 13560-61). Guidance on identifying RACT is found in the
supplement to the General Preamble (57 FR 18074); ``Procedures for
Identifying Reasonably Available Control Technology for Stationary
Sources of PM-10'' (EPA 450-R-93-001); and an August 7, 1980 memorandum
from Edward E. Reich, Director, Stationary Source Enforcement Division
to the regional air enforcement directors entitled ``Steel Technical
Support Options and Documents,'' (with the attached table entitled
``Particulate Emission Limitations Generally Achievable on a Retrofit
Basis'').
West Virginia submitted six Consent Orders for incorporation into
West Virginia's State Implementation Plan (SIP). By entering into the
Consent Orders, Wheeling-Pittsburgh Steel Corporation; Standard
Lafarge; Follansbee Steel Corporation; Koppers Industries,
Incorporated; International Mill Service, Incorporated; and Starvaggi
Industries, Incorporated have agreed to comply with reduced allowable
emission rates for PM-10. Table 1 presents a summary of the controls
required by the Consent Orders; more detail is provided by Tables 2
through 7. Consent orders with International Mill Service, Koppers
Industries, Standard Lafarge, Starvaggi Industries, and Wheeling-
Pittsburgh Steel provide for new or improved, specific dust control
measures. Consent orders with Follansbee Steel and Koppers Industries
require ``add-on'' control equipment.
Table 1
------------------------------------------------------------------------
Company Process Control
------------------------------------------------------------------------
Follansbee Steel....... Terne Metal Coaters No. Process control
1,2. (probably an
electrostatic
precipitator).
International Mill..... Sinter Receiving Hopper Partial Enclosure &
Spray.
Sinter Hopper & Sinter Full Enclosure &
Screens. Spray.
Sinter Storage Piles... Water Spray.
Unpaved Areas.......... Dust Control Plan.
Koppers................ Pitch Dryer............ Baghouse.
Standard Lafarge....... Slag Processing Plant.. Reduce Fugitives 95%.
Slag Receiving Hopper.. Increase Wet
Suppression.
Paved & Unpaved Roads.. Dust Control Plan.
Starvaggi.............. Unpaved Areas.......... Dust Control Plan.
Wheeling-Pitt Steel.... Coal Crusher........... Full Enclosure.
Coke Sizing No. 1,2.... Full Enclosure.
Coke Pushing No. 1,2,3. Mass limit on
baghouse.
Coke Underfiring No. Mass limit on
1,2,3,8. combustion stacks.
Paved & Unpaved Roads.. Dust Control Plan.
------------------------------------------------------------------------
Table 2.--New Limits for Follansbee Steel
--------------------------------------------------------------------------------------------------------------------------------------------------------
Limit(s)
Process Control -----------------------------------------------------------------------------------------------------
Unit TSP (lb/hr) PM-10 (lb/hr)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Terne Coaters No. 1, 2 Company has flexibility. No. 1..... 2.00 (approx. 53% control)................. 1.80 (approx. 53% control)
Will probably require a No. 2..... 1.80 (approx. 71% control)................. 1.66 (approx. 71% control)
new pollution control
device such as a
commercial precipitator.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 3.--New Limits for International Mill Services
----------------------------------------------------------------------------------------------------------------
Process Control Limit(s)
----------------------------------------------------------------------------------------------------------------
Sinter Receiving Hopper.......... Partial Enclosure & Spray................ TSP 0.092 lb/hr, PM-10
0.046 lb/hr, 5%
opacity, 95% control efficiency.
Sinter Hopper.................... Full Enclosure & Spray................... Hopper--TSP (lb/hr) 0.092; PM-10
Sinter Screens (lb/hr) 0.046.
Screening--TSP (lb/hr) 1.84; PM-10
(lb/hr) 0.938.
10% opacity, 95% control.
Sinter Storage Piles............. Water Spray.............................. TSP 0.682 lb/hr; PM-10
0.596 lb/hr; 5%
opacity; 75% control of TSP & PM-
10.
Unpaved Areas.................... Dust Control Plan........................ Program is the responsibility of
Wheeling-Pittsburgh Steel Company
under its consent order with
WVAPCC. International Mill
Service is also responsible
should Wheeling-Pitt, for any
reason, not implement the
program. (See Table 7.)
----------------------------------------------------------------------------------------------------------------
Table 4.--New Limits for Koppers
----------------------------------------------------------------------------------------------------------------
Process Control Limit(s)
----------------------------------------------------------------------------------------------------------------
Pitch Dryer........... Baghouse.................. TSP 1.86 lb/hr (0.93 lb/ton).
PM-10 0.59 lb/hr (0.30 lb/ton).
----------------------------------------------------------------------------------------------------------------
Table 5.--New Limits for Standard Lafarge
----------------------------------------------------------------------------------------------------------------
Process Control Limit(s)
----------------------------------------------------------------------------------------------------------------
Slag Processing Plant.......... Company has flexibility.................. TSP 19.13 lb/hr.
PM-10 8.15 lb/hr.
10% opacity, 95% control.
Slag Receiving Hopper.......... Increase Web Suppression................. TSP 0.07 lb/hr.
PM-10 0.06 lb/hr.
5% opacity, 80% control.
Paved & Unpaved Roads.......... Chemical Dust Suppressant................ 90% control.
----------------------------------------------------------------------------------------------------------------
Table 6.--New Limits for Starvaggi Incorporated
----------------------------------------------------------------------------------------------------------------
Process Control Limit(s)
----------------------------------------------------------------------------------------------------------------
Unpraved Roads & Parking Lots............. Chemical Suppressant................ 90% control.
----------------------------------------------------------------------------------------------------------------
Table 7.--New Limits for Wheeling-Pittsburgh Steel
----------------------------------------------------------------------------------------------------------------
Process Control Limit(s)
----------------------------------------------------------------------------------------------------------------
Coal Crushing..................................... Full Enclosure................... TSP 1.0 lb/
hr; PM-10
0.51 lb/hr; No visible
emissions; 90% Control
(PM-10).
Coal Sizing No. 1, 2.............................. Full Enclosure................... TSP 1.48 lb/
hr; PM-10
0.76 lb/hr; 5% opacity;
90% Control (PM-10).
Coke Pushing No. 1, 2, 3.......................... Existing Baghouse................ 2.14 lb/hr (approx. 0.022
lb/ton coal charged at
maximum operating rate).
----------------------------------------------------------------------------------------------------------------
Approx. lb/ton of
Battery Stack (lb/hr) coal charged at
maximum capacity
--------------------------------------------------------------------------------------------------------------------------------------------------------
Coke Underfiring No. 1, 2, 3, 8................... None............................. TSP
No. 1........................ 1.40 0.044
No. 2........................ 1.40 0.044
No. 3........................ 1.58 0.046
No. 8........................ 6.93 0.048
PM-10
No. 1........................ 1.35 0.043
No. 2........................ 1.35 0.043
No. 3........................ 1.52 0.046
No. 8........................ 6.65 0.047
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unpaved & Irregular Paved Surfaces................ Chemical Suppression............. 95% Control.
Paved Roads....................................... Flushing and Vacuum Sweeping..... 95% Control.
EPA's longstanding definition of RACT is the lowest emission
limitation or percent reduction that a particular source is capable of
achieving by the application of control technology that is reasonably
available considering technological and economic feasibility (see 57 FR
13541). Thus, EPA recommends that available control technology be
applied to those existing sources in the area that are reasonable to
control in light of the attainment needs of the area and the
feasibility of controls.
In addition to determining that the requirements of the consent
orders meet this definition of RACT, EPA also reviewed the requirements
of the six consent orders and found them consistent with the EPA
guidance documents on RACM referenced earlier in the notice. All of the
requirements identified by EPA in the previously referenced August 7,
1980 memorandum as being normally achievable for iron and steel sources
are in fact required by West Virginia. Although EPA has not developed
such specific PM-10 RACM guidance for other applicable point sources,
but the applicable control measures in the State's plan was found by
EPA to require the implementation of RACM for other sources in the
area.\5\ In addition, the plan requires implementation of RACM in all
cases by December 10, 1993. Consequently, West Virginia's plan is
judged to satisfy the RACM requirement in Section 189(a)(1)(C).
---------------------------------------------------------------------------
\5\The EPA has issued technological and economic parameters that
should be considered in determining RACT for a particular source
(see 57 FR 18073-74).
---------------------------------------------------------------------------
4. Attainment Demonstration\6\
---------------------------------------------------------------------------
\6\It should be noted that the modeling techniques used in the
attainment demonstration are based on the modeling guidelines in
place at the time the analysis was performed. EPA approval of this
analysis will not automatically apply to any other analysis of
Follansbee to support any further regulatory action.
---------------------------------------------------------------------------
As noted, the initial moderate PM-10 nonattainment areas must
submit a demonstration (including air quality modeling) showing that
the plan will provide for attainment as expeditiously as practicable
but no later than December 31, 1994 (See section 189(a)(1)(B) of the
Act). The 24-hour PM-10 NAAQS is 150 micrograms/cubic meter
(g/m\3\), and the standard is attained when the expected
number of days per calendar year with a 24-hour average concentration
above 150 g/m\3\ is equal to or less than one. The annual PM-
10 NAAQS is 50 g/m\3\, and the standard is attained when the
expected annual arithmetic mean concentration is less than or equal to
50 g/m\3\ (see 40 CFR 50.6). Alternatively, the State must
show that attainment by December 31, 1994 is impracticable.
West Virginia performed dispersion modeling for the Follansbee
area; this modeling is described in detail is section II.C.4 of the
TSD. The modeling is unapprovable as a demonstration of attainment
because of deficiencies in estimating emissions from coke oven
batteries, the lack of an approvable analysis of intermediate terrain,
and the nonguideline use of the RAM dispersion model in a
meteorologically rural area.
As described in the section of this notice entitled ``Emissions
Inventories,'' estimates of emissions from coke oven doors are in
error. Calculations of emissions from leaking coke oven doors were
based on an estimate of actual percent leaking doors leak rather than
the allowable leak rate, and the calculation of the relation between
BSO emissions and PM-10 emissions is in error.
EPA modeling guidance and policy require that receptors between
stack height and plume height must be modeled with both an appropriate
simple terrain model and an appropriate complex terrain model (see
EPA's Guideline on Air Quality Models (EPA-450/2-78-027R), and June 8,
1989 Memorandum from Joseph Tikvart to Alan Cimorelli). No
implementation of the intermediate terrain policy was included in the
State's submittal.
The State employed the Gaussian Plume Multiple Source Air Quality
Algorithm (RAM) to estimate the impacts of area sources such as
agricultural tilling and residential heating. The use of RAM in a
meteorologically rural area, such as the Steubenville, Ohio/Follansbee
West Virginia area, is inconsistent with the recommendations of the
Guideline on Air Quality Models.
Because of these deficiencies, EPA is proposing to disapprove the
SIP revision for the limited purpose of fulfilling the section 189(a)
requirement for a demonstration of attainment. For a more detailed
description of the attainment demonstration and the control strategy
used, see the Technical Support Document accompanying this notice. The
TSD also provides EPA's detailed rationale for determining that the
demonstration, as submitted, does not meet the criteria for approval.
5. PM-10 Precursors
The control requirements which are applicable to major stationary
sources of PM-10, also apply to major stationary sources of PM-10
precursors unless EPA determines such sources do not contribute
significantly to PM-10 levels in excess of the NAAQS in that area (see
section 189(e) of the Act).
An analysis of air quality and emissions data for the Follansbee
nonattainment area demonstrates that violations of the NAAQS are
attributable chiefly to direct particulate matter emissions from
industrial sources, and that sources of particulate matter precursors
SO2, and NOx contribute less than 8 g/m\3\.
Consequently, EPA is proposing to find that major sources of precursors
of PM-10 do not contribute significantly to PM-10 levels in excess of
the NAAQS. The consequences of this finding are to exclude these
sources from the applicability of PM-10 nonattainment area control
requirements. Further discussion of the analyses and supporting
rationale for EPA's finding are contained in the Technical Support
Document accompanying this notice. Note that while EPA is making a
general finding for this area, today's finding is based on the current
character of the area including, for example, the existing mix of
sources in the area. It is possible, therefore, that future growth
could change the significance of precursors in the area. EPA intends to
issue future guidance addressing such potential changes in the
significance of precursor emissions in PM-10 nonattainment areas.
6. Quantitative Milestones and Reasonable Further Progress (RFP)
The PM-10 nonattainment area plan revisions demonstrating
attainment must contain quantitative milestones which are to be
achieved every 3 years until the area is redesignated attainment and
which demonstrate RFP, as defined in section 171(l), toward attainment
by December 31, 1994 (see section 189(c) of the Act). Reasonable
further progress is defined in section 171(l) as such annual
incremental reductions in emissions of the relevant air pollutant as
are required by Part D or may reasonably be required by the
Administrator for the purpose of ensuring attainment of the applicable
NAAQS by the applicable date.
As stated previously, PM-10 plan revisions were due November 15,
1991, and RACM must be implemented no more than two years, 25 days
later, by December 10, 1993. It would be unreasonable, and therefore
not constitute RACT, to require a stationary source to install
successive, incremental controls during this short period. In
implementing RFP for the Follansbee area, EPA has reviewed the
attainment demonstration and control strategy for the area to determine
whether reductions different from those provided in the SIP should be
required in order to ensure attainment of the PM-10 NAAQS by December
31, 1994 (see section 171(l)). Each of the Consent Orders submitted by
West Virginia includes compliance dates for the various measures within
each order. While these dates vary, none are later than December 10,
1993 and many measures are required well before that date. EPA,
therefore, intends to approve West Virginia's submittal as fulfilling
the part D requirements for quantitative milestones and reasonable
further progress.
7. Enforceability Issues
All measures and other elements in the SIP must be enforceable by
the State and EPA (see sections 172(c)(6), 110(a)(2)(A) of the CAAA and
57 FR 13556). The EPA criteria addressing the enforceability of SIP's
and SIP revisions were stated in a September 23, 1987 memorandum (with
attachments) from J. Craig Potter, Assistant Administrator for Air and
Radiation, et al. (see 57 FR 13541). Nonattainment area plan provisions
must also contain a program that provides for enforcement of the
control measures and other elements in the SIP (see section
110(a)(2)(C)).
The particular control measures contained in the SIP are addressed
above under the section headed ``RACM (including RACT).'' These control
measures apply to the types of activities identified in Table 1 of that
section including reduced emission limits on both stack and fugitive
emissions. Through consent orders, the SIP provides applicable control
measures on a source-by-source basis.
Consistent with the attainment demonstration described above, the
submittal requires that all affected activities must be in full
compliance with the applicable provisions by, in the latest case,
December 10, 1993. In addition to the control measures, the submittal
includes record-keeping requirements which are specified in the consent
orders. In addition, the submittal (specifically, each consent
agreement) sets out compliance schedules that include dates by which
the source(s) must, for example, purchase and install equipment and
commence dust suppression programs.
The State of West Virginia has a program that will ensure that the
measures contained in the submittal are adequately enforced. The
compliance schedules and associated test methods are described in
detail in the consent orders. Each consent order specifically describes
or references test methods or other means of determining compliance.
8. Contingency Measures
As provided in section 172(c)(9) of the Act, all moderate
nonattainment area SIP's that demonstrate attainment must include
contingency measures (see generally 57 FR 13543-44). These measures
must be submitted by November 15, 1993 for the initial moderate
nonattainment areas. Contingency measures should consist of other
available measures that are not part of the areas's control strategy.
These measures must take effect without further action by the State or
EPA, upon a determination by EPA that the area has failed to make RFP
or attain the PM-10 NAAQS by the applicable statutory deadline. In
their consent orders, Wheeling-Pittsburgh Steel, International Mill
Services, and Follansbee Steel committed to develop contingency plans
(by July 1, 1992) to reduce mass emissions by quantities specified in
the consent orders. These companies agreed to the inclusion of these
plans into consent orders to be approved by the WVAPCC by December 31,
1992. Koppers Industries, which shares the use of some property with
Wheeling-Pittsburgh Steel, agreed to comply with such contingency plans
in its consent order.
In the General Preamble to Title I of the CAAA, EPA established a
November 15, 1993 deadline for state submittal of contingency plans.
Consequently, West Virginia will have until November 15, 1993 to submit
a detailed contingency plan necessary to satisfy section 172(c)(9) of
the Act. This discussion of the contingency measures included in the
Follansbee SIP will not be grounds for disapproval in whole or in part
of the Follansbee SIP submittal.
Proposed Action
EPA is proposing to grant a limited approval and limited
disapproval of the plan revision for the Follansbee, West Virginia
area.
While the submittal does not meet specific provisions of Part D, it
does contain some provisions (enforceable consent orders) which advance
the NAAQS-related air quality protection goals of the Act. Thus, EPA is
proposing a limited approval of the submittal to approve the consent
agreements and make them part of the SIP. EPA has evaluated the consent
agreements of West Virginia's SIP revision submittal for consistency
with the Act and EPA regulations and has found that the submittal
provides State and federally enforceable provisions to decrease PM-10
emissions in the nonattainment area. These measures, together with the
existing SIP, constitute RACM, including RACT.
Because the submittal does not meet the section 189(a)(1)(B)
requirement of Part D for an attainment demonstration and the section
172(c)(3) requirement for an accurate inventory of actual emissions
(for the reasons described previously in this notice) EPA cannot grant
full approval of this submittal under section 110(k)(3) and Part D of
the Act. Also, because the submitted revision is not composed of
separable parts which meet all the applicable requirements of the Act,
EPA cannot grant partial approval of the submittal under section
110(k)(3). However, EPA may grant a limited approval of the submitted
rule(s) under section 110(k)(3) in light of EPA's authority pursuant to
section 301(a) to adopt regulations necessary to further air quality
improvement by strengthening the SIP.
If finalized, this limited disapproval would constitute a
disapproval under section 179(a)(2) of the Act (see generally 57 FR
13566-67). As provided under section 179(a) of the Act, the State of
West Virginia would have up to 18 months after a final SIP disapproval
to correct the deficiencies that are the subject of the disapproval
before EPA is required to impose either the highway funding sanction or
the requirement to provide two-to-one new source review offsets. If the
State has not corrected its deficiency within 6 months thereafter, EPA
must impose the second sanction. Any sanction EPA imposes must remain
in place until EPA determines that the State has come into compliance.
Note also that any final disapproval would trigger the requirement for
EPA to impose a federal implementation plan within 24 months as
provided under section 110(c)(1) of the Act.
While this action proposes limited approval and limited disapproval
of West Virginia's SIP revision, EPA will fully approve the State's
submittal without further notice, if the unapprovable aspects of the
State's submittal are corrected.
EPA is proposing no action on the contingency measures with respect
to the requirements of section 172(c)(9) of the Act at this time.\7\ In
the General Preamble to Title I of the CAAA, EPA established a November
15, 1993 deadline for state submittal of contingency plans.
Consequently, West Virginia will have until November 15, 1993 to submit
a detailed contingency plan necessary to satisfy section 172(c)(9) of
the Act.
---------------------------------------------------------------------------
\7\As noted above, EPA is proposing to incorporate by reference
all of the submitted consent orders into the SIP in their entirety.
---------------------------------------------------------------------------
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under sections 110 and 301 and subchapter I, part D
of the Act do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
federal SIP-approval does not impose any new requirements, EPA
certifies that it does not have a significant impact on any small
entities affected. Moreover, due to the nature of the federal-state
relationship under the Act, preparation of a regulatory flexibility
analysis would constitute federal inquiry into the economic
reasonableness of state action. The Act forbids EPA to base its actions
concerning SIP's on such grounds. Union Electric Co. v. U.S. E.P.A.,
427 U.S. 246, 256-66 (S.Ct 1976); 42 U.S.C. 7410(a)(2).
EPA's disapproval of the State request under section 110 and
subchapter I, Part D of the Act does not affect any existing
requirements applicable to small entities. Any pre-existing federal
requirements remain in place after this disapproval. Federal
disapproval of the State submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not
impose any new federal requirements. Therefore, EPA certifies that this
proposed disapproval action does not have a significant impact on a
substantial number of small entities because it does not impose any new
federal requirements.
Under Executive Order 12866, this action is not ``significant.'' It
has been submitted to OMB for review.
The Administrator's decision to approve or disapprove West
Virginia's PM-10 SIP revision for the Follansbee nonattainment area
will be based on whether it meets the requirements of Section
110(a)(2)(A)-(K), 110(a)(3), and Part D of the Clean Air Act, as
amended, and EPA regulations in 40 CFR Part 51.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, hydrocarbons,
Intergovernmental relations, Nitrogen dioxide, Particulate matter,
Reporting and recordkeeping requirements, Sulfur dioxide, and Volatile
organic compounds.
Authority: 42 U.S.C. 7401-7671.
Dated: July 13, 1993.
Stanley L. Laskowski,
Acting Regional Administrator.
[FR Doc. 94-275 Filed 1-6-94; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 94-271 Drawbridge Operation Regulations, Illinois River, IL
[Federal Register Volume 59, Number 5 (Friday, January 7, 1994)]
[Proposed Rules]
[Pages 986-988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-271]
[[Page Unknown]]
[Federal Register: January 7, 1994]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 117
[CGD02 93-003]
RIN 2115-AE47
Drawbridge Operation Regulations, Illinois River, IL
AGENCY: Coast Guard, DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard proposes amending a drawbridge regulation to
add a new regulation which will allow the remote operation of the
Chicago and Northwestern Transportation Company railway bridge at
Pekin, Illinois. This action is being proposed at the request of the
Chicago and Northwestern Transportation Company of Chicago, Illinois.
The change to remote operation will provide for more efficient
operation of the railway bridge.
DATES: Comments must be received on or before February 22, 1994.
ADDRESSES: Comments may be mailed to Commander (ob), Second Coast Guard
District, 1222 Spruce Street, St. Louis, MO 63103-2832, Attention:
Docket CGD02 93-003. Comments may also be delivered to room 2.107B at
the above address between 8 a.m. and 3 p.m., Monday through Friday,
except Federal holidays. For information concerning comments, the
telephone number is (314) 539-3724.
The Bridge Branch, Second Coast Guard District, maintains the
public docket for this rulemaking. Comments will become part of the
public docket and the docket will be available for inspection or
copying in room 2.107B at the above address.
FOR FURTHER INFORMATION CONTACT: Roger K. Wiebusch, Bridge
Administrator, Second Coast Guard District, (314) 539-3724.
SUPPLEMENTARY INFORMATION:
Request for Comments
The Coast Guard encourages interested persons to participate in
this rulemaking by submitting written data, views, or arguments.
Persons submitting comments should include their names and addresses,
identify this rulemaking, CGD02 93-003, identify the specific section
of this proposal to which each comment applies, and give the reason for
each comment. Each person who wants an acknowledgment of the receipt of
comments should enclose a stamped, self-addressed postcard or envelope.
The Coast Guard will consider all comments received during the
comment period. The Coast Guard may change the proposal in view of the
comments.
The Coast Guard does not plan to hold a public hearing. Persons may
request a public hearing by writing to the Docket Clerk at the address
under ADDRESSES. If the Coast Guard determines that the opportunity to
make oral presentations will aid the rulemaking process, the Coast
Guard will hold a public hearing at a time and place announced by a
later notice in the Federal Register.
Drafting Information
The principal persons involved in drafting this document are Wanda
G. Renshaw, Project Officer, Bridge Branch, and Lieutenant Commander
Arne O. Denny, Project Attorney, Second Coast Guard District Legal
Office.
Background and Purpose
The Chicago and Northwestern Transportation Company (C&NW) has
requested Coast Guard approval to change the method of operating their
railway bridge at Pekin, Illinois. The draw of the Chicago and
Northwestern railway bridge, Mile 151.2 Illinois River, is presently
maintained in the open-to-navigation position, and closed by an on-site
bridge tender upon the approach of a train. On average, six to eight
trains cross the bridge daily. Communication between the bridge tender
and vessel operators is conducted on marine radio.
C&NW proposes to install remote operating equipment and a control
system, including radar, infrared boat detectors, high intensity lights
and communications equipment, that would permit operation of the draw
from the Chicago and Northwestern office in Chicago, Illinois. The
equipment would indicate any malfunction in the bridge operation and
enable the remote operator to ascertain the position of the lift span
at any time. The marine radio system will receive and transmit on the
VHF marine frequencies authorized by the Federal Communications
Commission. The bridge could also be operated at the bridge site, at
either portal, by authorized railroad personnel. Radio-telephone
equipment would also be provided to permit direct communications with
vessels when the bridge is operated at the bridge site. A radar antenna
will be installed on the fixed portion of the bridge structure, and the
received signal will be transmitted by fixed lines and a microwave link
to the Chicago and Northwestern office in Chicago. The radar system
will be designed to scan upstream and downstream of the bridge.
Infrared scanners will be located on the upstream and downstream ends
of the channel span piers to detect vessels in the channel span. If an
obstruction is detected beneath the lift span during the closing cycle
before the span is seated and locked, the lift span will be
automatically stopped and immediately raised to the fully open position
until the channel is clear.
During the bridge closing cycle, an automatic, synthesized-voice
announcement will be broadcast. At the appropriate times in the closing
cycle, the broadcast will announce that the bridge will close to
navigation, that the bridge is closed to navigation, or that the bridge
has reopened to navigation.
Discussion of Proposed Amendments
The proposed regulation will impose operating and equipment
requirements on Chicago and Northwestern which will ensure the safe and
timely operation of the railroad bridge. To do this, title 33 CFR part
117 needs to be amended. The present text of the existing subsection
117.393, Illinois River will be redesignated as subparagraph (a). This
subsection regulates the Burlington Northern's railroad bridge at mile
88.8 of the Illinois River, at Beardstown, Illinois. Except for being
renumbered, the regulation covering the operation of the Burlington
Northern railroad bridge will not be changed. The proposed regulation
will be numbered as subparagraph (b).
The proposed regulation will provide information about remote
operation of the Chicago and Northwestern railroad bridge. The Chicago
and Northwestern railroad bridge presently operates with an on-site
bridge tender and is normally in the open position or opens on demand
if it should be closed as a vessel approaches. If the Coast Guard
approves operation from a remote site, the railroad bridge will
continue to operate as a normally open span. However, the Coast Guard
will require the use of additional sound, voice, and light signals to
coincide with the various stages of the opening and closing of the
span.
Regulatory Evaluation
This proposal is not considered a significant regulatory action
under Executive Order 12866 and is not significant under the Department
of Transportation Regulatory Policies and Procedures (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
proposal to be so minimal that a Regulatory Evaluation is unnecessary.
A sample group of Illinois River users have expressed no objection to
the proposal.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this proposal will have a significant
impact on a substantial number of small entities. ``Small entities''
include independently owned and operated small businesses that are not
dominant in their field and that otherwise qualify as ``small business
concerns'' under section 3 of the Small Business Act (15 U.S.C. 632).
The proposed change to the method for opening and closing the
Chicago and Northwestern railroad bridge is not significantly different
from the existing method which uses an on-site bridge tender. It does
not appear to impose any new burdens or delays on vessel operators.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this
proposal, if adopted, will not have a significant impact on a
substantial number of small entities. If, however, you think that your
business qualifies as a small entity and that this proposal will have a
significant economic impact on your business, please submit a comment
(see ADDRESSES) explaining why you think your business qualifies and in
what way and to what degree this proposal will economically affect your
business.
Collection of Information
This proposal contains no collection of information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this proposal in accordance with the
principles and criteria contained in Executive Order 12612 and has
determined that this proposal does not have sufficient federalism
implications to warrant preparation of a Federalism Assessment.
Environment
The Coast Guard has reviewed the environmental impact of this
proposal and concluded that under section 2.B.2 of the NEPA
Implementing Procedures, COMDTINST M16475.1B this proposal is
categorically excluded from further environmental documentation because
promulgation of changes to drawbridge regulations have been found to
not have a significant effect on the human environment. A Categorical
Exclusion Determination is available in the docket for inspection or
copying where indicated under ADDRESSES.
List of Subjects in 33 CFR Part 117
Bridges.
PART 117--DRAWBRIDGE OPERATION REGULATIONS
For the reasons set out in the preamble, the Coast Guard proposes
to amend part 117 of title 33, Code of Federal Regulations, as follows:
1. The authority citation for part 117 continues to read as
follows:
Authority: 33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05-1(g).
2. In Sec. 117.393, paragraphs (a), (b), (c), (d), and (e) are
redesignated as (a)(1) through (a)(5), respectively, the introductory
paragraph of Sec. 117.393 is redesignated as the introductory text of
paragraph (a) and a new paragraph (b) is added to read as follows:
Sec. 117.393 Illinois River.
* * * * *
(b) The draw of the Chicago and Northwestern railroad bridge, Mile
151.2, at Pekin, Illinois, is operated by a remote operator located at
the Chicago and Northwestern offices in Chicago, Illinois, as follows:
(1) The draw is normally maintained in the fully open position,
displaying green midchannel lights to indicate that the span is fully
open.
(2) The draw is equipped with the following:
(i) A radiotelephone link direct to the remote operator,
(ii) A horn for sound signals,
(iii) Eight high intensity amber warning lights, oriented upstream
and downstream, with two secured to the uppermost chord and two secured
to the lowermost chord of the drawspan,
(iv) A radar antenna on the lower portion of the drawspan capable
of scanning one mile upstream and one mile downstream, and
(v) Infrared scanners located on the upstream and downstream ends
of the channel span piers, to detect vessels or other obstructions
under the bridge.
(3) The remote operator shall maintain a radiotelephone watch for
mariners to establish contact as they approach the bridge to ensure
that the draw is open or that it remains open until passage is
complete.
(4) When a train approaches the bridge and the draw is in the open
position, the remote operator initiates a ten minute warning period
before closing the bridge. During this warning period, the amber lights
begin flashing and a signal of four short blasts sounds on a horn. The
four-blast signal will repeat after a five second interval. A
synthesized-voice message is broadcast over the radiotelephone as
follows: ``The Chicago and Northwestern railroad bridge at Mile 151.2,
Illinois River, will close to navigation in ten minutes.'' The
announcement is repeated every two minutes, counting down the time
remaining until closure.
(5) At the end of the ten minute warning period, the remote bridge
operator scans under the bridge using infrared detectors and the
upstream and downstream approaches to the bridge using radar to
determine whether any vessels are under or are approaching the bridge.
If any vessels are under or are approaching the bridge within one mile
as determined by infrared or radar scanning or by a radiotelephone
response, the remote operator shall not close the bridge until the
vessel or vessels have cleared the bridge.
(6) If no vessels are under or approaching the bridge, the
midchannel navigation lights will change from green to red, the horn
signal of four short blasts will sound, twice, and the radiotelephone
message will change to: ``The Chicago and Northwestern Railroad Bridge
at Mile 151.2, Illinois River, is closed to navigation.'' The message
will repeat every two minutes and the amber lights will continue to
flash until the bridge is fully reopened.
(7) If the infrared scanners detect a vessel or other obstruction
under the bridge before the drawspan is fully lowered and locked, the
closing sequence is stopped, automatically, and the drawspan is raised
to its fully open position until the channel is clear. When obstruction
has cleared the navigation span, the remote operator confirms that the
channel is clear, and reinitiates the ten-minute warning cycle.
(8) After the train has cleared the bridge, the remote operator
initiates the lift span raising cycle. When the draw is raised to its
full height and locked in place, the flashing lights stop and the
midchannel navigation lights change from red to green. The synthesized
voice announcement broadcasts at two minutes intervals for ten minutes
that the bridge is reopened to navigation.
Dated: December 27, 1993.
Paul M. Blayney,
Rear Admiral, U.S. Coast Guard, Commander, Second Coast Guard District.
[FR Doc. 94-271 Filed 1-6-94; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 94-259 Designated Housing; Public Housing Designated for Occupancy by Disabled, Elderly, or Disabled and Elderly Families
[Federal Register Volume 59, Number 5 (Friday, January 7, 1994)]
[Proposed Rules]
[Pages 1244-1257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-259]
[[Page Unknown]]
[Federal Register: January 7, 1994]
_______________________________________________________________________
Part V
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Assistant Secretary for Public and Indian Housing
_______________________________________________________________________
24 CFR Parts 945 and 960
Public Housing Designated for Occupancy by Disabled, Elderly, or
Disabled and Elderly Families; Proposed Rule
=======================================================================
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Public and Indian Housing
24 CFR Parts 945 and 960
[Docket No. R-94-1694; FR-3425-P-01]
RIN 2577-AB27
Designated Housing; Public Housing Designated for Occupancy by
Disabled, Elderly, or Disabled and Elderly Families
AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, HUD.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would implement section 622(a) of the
Housing and Community Development Act of 1992. Section 622(a) provides
public housing agencies (PHAs) with the option, subject to certain
requirements, to designate public housing projects, or portions of
public housing projects, for occupancy by disabled families; elderly
families; or disabled families and elderly families.
This proposed rule would also amend existing regulations, which
currently provide for preference for elderly families and disabled
families, and discretionary preference for near-elderly families in
``public housing projects for the elderly''--that is, public housing
projects that house both elderly families and disabled families. The
regulations would continue to provide for preference for disabled
families and elderly families in public housing projects that house a
population of disabled families and elderly families. However, certain
amendments would be made to include new and revised definitions
pertaining to ``family'' as set forth in section 621 of the 1992 Act,
and to provide for recognition of the designated housing process.
DATES: Comment due date: March 8, 1994.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Office of General Counsel, Rules Docket
Clerk, room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW., Washington, DC 20410. Communications should refer
to the above docket number and title. A copy of each communication
submitted will be available for public inspection and copying on
weekdays between 7:30 a.m. and 5:30 p.m. at the above address.
FOR FURTHER INFORMATION CONTACT: Edward Whipple, Director, Occupancy
Division, Department of Housing and Urban Development, 451 Seventh
Street, SW., room 4206, Washington, DC 20410. Telephone number (202)
708-0744 (this is not a toll-free number). Hearing-impaired persons may
contact these offices via TDD by calling (202) 708-9300 or 1-(800) 877-
8339.
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act Statement
The information collection requirements contained in this proposed
rule have been submitted to the Office of Management and Budget for
review under the Paperwork Reduction Act of 1980. No person may be
subjected to a penalty for failure to comply with these information
collection requirements until the requirements have been approved and
assigned an OMB control number. The OMB control number, when assigned,
will be announced by separate notice in the Federal Register. The
public reporting burden for the collection of information requirements
contained in this proposed rule is estimated to include the time for
reviewing the instructions, searching existing data sources, gathering
and maintaining the data needed, and completing and reviewing the
collection of information.
Information on the estimated public reporting burden is provided
under the preamble heading, Other Matters. Send comments regarding this
burden estimate or any other aspect of this collection of information,
including suggestions for reducing this burden, to the Department of
Housing and Urban Development, Rules Docket Clerk, 451 Seventh Street,
SW., room 10276, Washington, DC 20410; and to the Office of Information
and Regulatory Affairs, Office of Management and Budget, New Executive
Office Building, room 3001, Washington, DC 20503, Attention: HUD Desk
Officer.
II. Overview of Section 622(a) of the 1992 Act
Section 622(a) of the Housing and Community Development Act of 1992
(Pub.L. 102-550, approved October 28, 1992) (the 1992 Act) amended
section 7 of the United States Housing Act of 1937 (the 1937 Act) (42
U.S.C. 1437e) to provide public housing agencies (PHAs)1 with the
option, subject to certain requirements, to designate public housing
projects, or portions of public housing projects for occupancy by (1)
disabled families; (2) elderly families; or (3) disabled families and
elderly families. (Section 7 of the 1937 Act, previously titled
``Congregate Housing'' was retitled ``Designated Housing'' by the 1992
Act. Unless the context indicates otherwise, the references to section
7 in this preamble are to section 7 as amended by section 622(a) of the
1992 Act.)
---------------------------------------------------------------------------
\1\Section 626 of the 1992 Act provides that the amendments made
by subtitle B of title VI of the 1992 Act (which amendments pertain
to the authority of PHAs to provide designated housing) shall not
apply to lower income housing developed or operated pursuant to a
contract between HUD and an Indian housing authority.
---------------------------------------------------------------------------
Section 7 provides for designation of public housing projects, or
portions of public housing projects (see section 7(a)(1)). Section 7
further provides that in determining priority for occupancy in
designated projects, a PHA may make units in the designated project
available only to the types of families for whom the project is
designated (see section 7(a)(2)).
Section 7(f) provides that a project may be designated following
HUD review and approval of the PHA's written plan for allocating its
housing resources among the various populations that it serves, and its
plan for securing additional housing resources sufficient to provide
housing assistance to not less than the number of non-elderly disabled
families that would have been housed by the PHA if occupancy in a
project, or portion thereof, was not restricted to certain families as
a result of a PHA's designation of a project. The information, at a
minimum, to be contained in the allocation plan, and which is listed in
section 7(f)(2), is information pertaining to current residents of the
project to be designated, the PHA's current housing inventory, families
on waiting lists, and future demand for particular types of housing.
Section 7(f)(4) establishes the criteria by which the Department will
approve or disapprove a PHA's allocation plan.
In connection with allocating its housing resources among the
various populations that it serves, section 7(d) provides that each PHA
shall meet, to the extent practicable, the housing and service needs of
eligible families applying for assistance under this title, as provided
in any allocation plan of the PHA. (This ``title'' refers to title VI
of the 1992 Act--``Housing for Elderly Persons and Persons with
Disabilities.'') To meet such needs, section 7(d) provides that PHAs,
wherever practicable and in accordance with any allocation plan, may:
(1) Provide housing in which supportive services are provided,
facilitated, or coordinated, such as mixed housing, shared housing,
family housing, group homes, congregate housing and other housing as
the PHA considers appropriate; (2) carry out major reconstruction of
obsolete public housing projects and reconfiguration of public housing
dwelling units; and (3) provide tenant-based assistance under section
811(b)(1) of the National Affordable Housing Act (NAHA) (Pub. L. 101-
625, approved November 28, 1990; see 42 U.S.C. 8013).
With respect to projects to be designated for occupancy by disabled
families, section 7(e) requires the PHA to comply with all the
requirements of section 7 (which include submission of the allocation
plan) and to submit for HUD review and approval an ``application for
designated housing for disabled families.'' This application requires
the PHA to include a supportive services plan, which describes the
needs of the disabled families that the designated housing is expected
to serve, and provides for delivery of supportive services appropriate
to meet the disabled family's needs.
Section 7(f)(5) requires PHAs that receive permission to operate
designated housing to submit not less than once every two years, an
updated allocation plan, and describes the information that must be
included, at a minimum, in the updated plan. This information is
directed to helping the PHA and the Department determine whether the
initial data and projections provided in the allocation plan were
accurate.
Section 7 establishes certain requirements that must be followed in
the PHA's operation of designated housing. (See sections 7(a)(4), 7(b),
7(c) and 7(g).) These requirements address, among other things, such
issues as (1) tenant choice to live in designated projects; (2)
vacancies in designated projects (i.e., units that are vacant for more
than 60 consecutive days), and (3) prohibition against requiring
tenants (who are not members of the group for whom a project was
designated) to vacate designated housing.
III. Proposed Rule
This section of the preamble provides a summary of the proposed
organization and principal provisions of new part 945, and the proposed
conforming amendments that would be made to 24 part 960, subpart D.
Proposed Part 945--Designated Housing--PHA Housing Designated for
Occupancy by Disabled, Elderly, or Disabled and Elderly Families
New part 945 would be divided into three subparts: Subpart A--
General; Subpart B--Application and Approval Procedures; and Subpart
C--Operating Designated Housing.
Subpart A--General
Subpart A would set forth the purpose of part 945, and the general
policies applicable to the designated housing process. These general
policies include, among others, that designation of projects is limited
to PHAs, and ``projects'' eligible for designation are limited to
public housing projects.
Subpart A also would define the principal terms used in part 945.
Several terms proposed to be included in the definition section of
subpart A are those defined in section 621 of the 1992 Act, which
amended section 3(b) of the 1937 Act. Section 3(b) contains the
statutory definitions for certain terms used in the 1937 Act. Several
of the terms defined in section 621 are applicable to the designated
housing process, such as: ``family,'' ``elderly person,'' ``near-
elderly person,'' and ``person with disabilities.''
The definitions for ``family'' and ``elderly person'' and other
related terms (e.g., ``single person'') are currently contained in 24
CFR part 912, entitled ``Definition of Family and Other Related Terms;
Occupancy by Single Persons.'' Part 912, however, has not yet been
amended to reflect the revised definitions provided by section 621 or
to add the new terms defined in section 621. (For example, the
definition of ``person with disabilities'' would replace two
definitions in part 912--``disabled person'' and ``handicapped
person.'') Under separate final rulemaking, part 912 will be amended to
include several of the revised and new definitions set forth in section
621 (and which are proposed by this rule to be included in part 945).
If the part 912 final rule is published before the part 945 final rule,
the part 945 final rule, rather than define terms such as ``family,''
and ``elderly person,'' will list these terms in the part 945
definition section, and cross-reference to the definitions provided in
part 912. If the part 945 final rule is published before the part 912
final rule, the definition section of the part 945 will be amended at
the time of publication of the part 912 final rule to cross-reference
to the definitions provided in part 912. The advantage in keeping these
definitions in part 912 (which was established to define ``family'' and
related terms) is that part 912 offers a convenient location to place
the definitions for terms that are applicable to all public housing
programs. Additionally, by placing these definitions in one location,
it reduces the number of program regulations that must be amended to
reflect changes in these terms as a result of statutory amendments, or
administrative policy decisions.
Other terms defined in part 945 include ``housing,'' ``project,''
``portion of project,'' ``public housing,'' ``service provider,''
``supportive services,'' and ``public housing projects for disabled
families and elderly families.''
``Housing,'' and ``public housing'' would have the same meaning as
``project'' in part 945 to reflect the interchangeable use of these
terms in section 7. ``Project'' would be defined to mean low-income
housing developed, acquired or assisted by a PHA under the U.S. Housing
Act of 1937 (other than section 8) and for which there is an Annual
Contributions Contract (ACC) between HUD and the PHA.
The definition for ``project'' would provide that, unless otherwise
indicated in part 945, wherever the term ``project'' appears in part
945 it includes the plural, and also includes the term ``portion of a
project.'' Project is defined in this encompassing manner because a PHA
may request designation of one or more of the following: A single
project, one or more projects, a portion of a project, or portions of
several projects.
The term ``portion of a project'' would be defined to include a
building or buildings (in a multi-building project), a floor or floors
of a building or buildings, or a certain number of dwelling units in a
project or projects. The definition would clarify that designation of a
portion of a project does not require that the buildings, floors, or
units designated for occupancy by disabled families or elderly families
be contiguous. The buildings, floors, and units may be scattered
throughout PHA projects.
The definition for ``service provider'' would be modeled on the
definition provided for this term in the Congregate Housing Service
Program interim rule published in the Federal Register on December 8,
1992 (57 FR 58042).
With respect to ``public housing projects for disabled families and
elderly families,'' part 945 will include this term in its definition
section, and cross-reference to the definition provided in part 960,
subpart D. As will be discussed later in this preamble under the
proposed amendments to part 960, the term ``public housing project for
disabled families and elderly families'' will be defined to mean (1) a
public housing project or portion of a project that was reserved for
occupancy by disabled families and elderly families at its inception
(and has retained that character), or (2) although not so reserved at
its inception, a public housing project or portion of a project for
which the PHA has obtained HUD's approval to give preference in tenant
selection for all units in the project to disabled families and elderly
families. Subpart D currently uses the term ``designated'' and not
``reserved.'' However, to avoid confusion with the designated housing
process provided by new part 945, a process which requires the
submission of an allocation plan, HUD proposes to use the term
``reserved'' in connection with projects for which a PHA provides
preference for disabled families and elderly families in accordance
with part 960, subpart D.
Subpart B--Application and Approval Procedures
Subpart B would incorporate the requirements established by section
7 for obtaining HUD approval to designate public housing for occupancy
by disabled families or elderly families. Consistent with section 7,
subpart B would provide that to designate a public housing project for
occupancy by disabled families or elderly families, a PHA must submit
to HUD, and receive HUD approval of, the allocation plan required by
section 7(f).
The allocation plan would consist of the data required to be
included by section 7(f), and includes additional items added by the
Department, which items are consistent with the type of information
solicited under section 7(f). The information solicited by section 7(f)
is intended to help the PHA and HUD determine whether designation of a
project will (1) benefit the group for whom the project is proposed to
be designated, and (2) not adversely affect families who are not
members of the group for whom the project is to be designated.
In incorporating the statutory components of the allocation plan,
the Department has altered the statutory language of an information
item only where the Department considered further clarification or
elaboration was needed. The Department does not propose through this
rule to prescribe methods by which the PHA should calculate the number
of families, number of units, or the number of times housing assistance
may be denied or delayed to a family in order to arrive at the
information required to be included in the allocation plan. The
Department prefers to allow each PHA to rely on its own occupancy
policies and procedures (including procedures for maintaining waiting
lists) and other methods that may be derived by the PHA for producing
the information required to be included in the allocation plan.
* * * The Department, however, specifically requests comment from
PHAs on whether additional guidance is needed on how to determine one
or more of the information items required to be included in the
allocation plan.
The Department added to the allocation plan requirements the goals
or objectives which the PHA should strive to achieve in allocating its
housing resources among the population it serves. These goals or
objectives include the following.
First, the PHA should strive to provide, regardless of the
designation proposed to be made, as broad a range of housing choices
(with respect to types of housing, types of housing features (e.g.
accessible units for persons with disabilities) and accessible location
to social, commercial facilities, such as shopping markets) that would
be available to elderly families and disabled families if there was no
designation of projects in accordance with part 945.
Second, the PHA should strive to provide its disabled families with
the most integrated setting possible. Under the designated housing
process, the PHA only should seek to provide public housing that
separates families on the basis of disability when the types of
supportive services required by disabled families necessitate the
concentration of families in a single location (i.e., a building,
contiguous floors or units). An example of a supportive service that
may require the concentration of families in a single location is the
service of a live-in attendant, and to achieve efficiency in cost and
delivery of this service, several families may share the services of
this attendant.
The Department may disapprove an allocation plan which fails to
indicate that the PHA strived to (1) provide as broad a range of
housing choices that would have been available to elderly families and
disabled families if there had been no designation, or (2) provide its
disabled families with the most integrated setting possible.
In addition to the above two objectives, section 7 requires that
the allocation plan disclose the PHA's strategy for securing additional
housing resources that will be sufficient to provide housing assistance
to not less than the number of non-elderly disabled families that would
have been housed by the PHA if there was no designated project. The
proposed rule would provide, consistent with section 7(f)(2)(G) that
these resources must be owned or controlled by the PHA, or that the PHA
has received preliminary notification that it will obtain these
resources, or the PHA intends to apply for these resources. The
requirement to secure housing resources sufficient to address the
housing needs of the PHA's non-elderly disabled families who would have
been housed but for the designation of a project is not to be construed
as a requirement for one-for-one replacement of housing assistance.
Rather, this requirement is intended to ensure that persons with
disabilities not be under-served by the PHA that designates a project
for occupancy only by elderly families. The types of housing resources
available to the PHA, and the methods by which a PHA may obtain
additional housing resources include the following:
The PHA may utilize vacancies and turnover in other public housing
projects that are not designated and that are not intended to be
designated, as well as turnover in section 8 certificates and vouchers.
The PHA may provide local preferences for a specific number of non-
elderly disabled persons, in accordance with 24 CFR 960.211, for public
housing general occupancy projects, public housing projects for
disabled families and elderly families as provided in 24 CFR part 960,
subpart D, or for the section 8 certificate or voucher program. In
choosing this method, the PHA must demonstrate that the preference will
result in the desired increase in the number of non-elderly disabled
persons housed.
The PHA may provide for allocation of a certain number of public
housing units (existing or new) or section 8 certificates or vouchers,
which will be accompanied by a supportive services package. This may be
achieved by the PHA entering into an agreement with a supportive
service provider to make available a certain number of units in
exchange for the provider delivering supportive services to disabled
families. In accordance with the objective to maintain the most
integrated housing setting, public housing units allocated for this
purpose should not be contiguous, except where the type of supportive
services to be provided require that the families be concentrated in a
single location. The units or certificates or vouchers provided under
this method would be allocated to non-elderly disabled families in the
order of their application date on the waiting list. Clients of the
service provider delivering the supportive services would not be
provided these units, or certificates or vouchers, before other non-
elderly disabled families already on the PHA's waiting list who need
the supportive services being offered with this housing assistance.
Additionally, occupancy of these units may not be limited to members of
a particular disability group, but may be limited to persons who need
the available supportive services (as will be discussed later in this
preamble, projects designated for disabled families may not be
designated for occupancy only by persons with a specific disability).
This type of additional housing resource may be selected by a PHA that
has a population of non-elderly disabled families who would not
otherwise benefit from the housing without the supportive services.
The PHA may use modernization funds to reconfigure units and
buildings to appropriate sizes or uses for non-elderly disabled
families.
The PHA may designate projects, or portions of projects, for
occupancy by disabled families (note that projects designated for
occupancy by disabled families must have a supportive service plan).
The PHA may allocate to non-elderly disabled families the units
vacated in other PHA projects by elderly families who intend to
relocate to a project designated for occupancy by elderly families.
Consistent with section 7(d)(1), the PHA may utilize housing owned
or controlled by the PHA in which supportive services are provided,
facilitated, or coordinated, such as mixed housing, shared housing,
family housing, group homes, congregate housing, and other housing as
the PHA considers appropriate.
Consistent with section 7(d)(2), the PHA may use development funds
or funds for major reconstruction of obsolete public housing (MROP) to
provide housing for disabled families in accordance with section 624 of
the 1992 Act, which provides for development and reconstruction of
housing for disabled families from funds, which may be not less than
five percent, of funds reserved, respectively, for public housing
development and for MROP.
Consistent with section 7(d)(3), the PHA may provide tenant-based
assistance under the Supportive Housing for Persons with Disabilities
Program (section 811 of the NAHA).
Additionally, a PHA may use all or a portion of net increases in
units available for occupancy in a project as a result of the
rehabilitation of vacant units in the project which previously had been
uninhabitable.
The foregoing provides a few examples of ways in which PHAs may
secure additional housing resources for non-elderly disabled families.
* * * The Department specifically requests comment from PHAs on any
problems they may foresee with the above examples provided by the
Department, and suggestions for other methods by which PHAs may obtain
additional housing resources.
In securing additional housing resources, PHAs must take into
account the supportive service needs of disabled persons, especially
those persons with disabilities who require units with accessible
features. The PHA should be able to make this assessment on information
provided by its public housing waiting list, and from information
collected in the comprehensive housing affordability strategy (CHAS)
provided in accordance with section 105 of the NAHA. Consideration of
the accessibility needs of persons with disabilities is not a new
requirement proposed to be imposed on PHAs through this proposed rule.
The Department's regulations at 24 CFR part 8 implementing section 504
of the Rehabilitation Act of 1973 (29 U.S.C. 794) require PHAs to
assess, on a PHA-wide basis, the needs of current tenants and
applicants on its waiting list for accessible units. In reiterating
this requirement in this proposed rule, the Department seeks to ensure
that PHAs will not reduce the availability of accessible units that
would have been allocated to persons with disabilities were it not for
the designation of a project as elderly-only.
In reviewing a PHA's strategy for addressing the current and future
housing needs of the families in the PHA's jurisdiction, HUD will
examine closely both the PHA's proposed allocation of its immediately
available housing resources (e.g., vacancies in projects, available
section 8 certificates or vouchers), and the PHA's plan to secure and
allocate additional housing resources that it owns or controls. HUD
will not approve an allocation plan that does not adequately provide
for the housing needs of (1) families who are members of the group for
whom a project was designated, (2) families who are not members of the
group for whom a project was designated, or (3) both of these groups.
In deciding how its housing resources will be allocated, the PHA should
strive to provide disabled families and elderly families with dwelling
units, whether in designated housing or non-designated housing, that
are comparable to units that would have been offered to them if there
were no designated project.
HUD also will not approve an allocation plan that reduces the
available current supply of housing for non-elderly disabled families,
and provides for increased housing for these families at some distant,
or indefinite, point in the future. For example, HUD will not approve
an allocation plan submitted by a PHA that has a percentage of non-
elderly disabled families on its waiting list that is two to three
times the percentage residing in public housing, and through which plan
the PHA (1) requests designation of an elderly-only project, and (2)
proposes, as its only additional housing resource for non-elderly
disabled families on its waiting list, a public housing project that
has yet to be built. Since development of public housing is a complex
and competitive process, such a proposal falls substantially short of
adequately addressing the housing needs of non-elderly disabled
families on a PHA's waiting list.
An approvable allocation plan is one that, given the housing
inventory of the PHA and the population it serves, provides its
disabled families and elderly families with as broad a range of housing
choice as possible, with respect to the level of supportive services
provided, the availability of accessible units, and integration with
other family groups (i.e., non-elderly families, non-disabled families,
and families with children).
Subpart B would not require a PHA to submit an allocation plan and
seek formal designation for public housing projects which currently
house a combination of disabled families and elderly families, or for a
project in which the PHA intends to house a combination of disabled
families and elderly families. The Department does not seek to impose
on PHAs the administrative burden of preparing an allocation plan for
providing housing to a combination of disabled families and elderly
families where no administrative burden of this type is currently
imposed on PHAs for this type of housing. (As will be discussed later
in this preamble, PHAs must, however, obtain approval for this type of
housing under 24 part 960, subpart D.) To require submission of an
allocation plan solely for the purpose that the PHA may provide,
continue to provide, or provide in the future, public housing projects
that house a combination of disabled families and elderly families may
discourage PHAs from continuing to provide this type of housing.
The proposed rule, however, would require that public housing
projects for disabled families and elderly families must obtain
designation as housing for disabled families and elderly families when
a PHA decides to submit an allocation plan for designation of a public
housing project, or portion thereof, for occupancy by disabled
families, or by elderly families. In its allocation plan, the PHA would
identify any public housing projects that house disabled families and
elderly families and that were approved as housing for these two types
of families in accordance with 24 CFR part 960, subpart D.
``Designation'' as housing for disabled families and elderly families
would be granted to these projects when designation is granted for the
PHA's proposed housing for disabled families or housing for elderly
families. If a PHA does not seek designation of housing for elderly
families or for disabled families, the PHA is not required to obtain
designation for its mixed housing of disabled families and elderly
families.
For designation of housing for occupancy by disabled families,
section 7(e) requires submission and approval of an ``application for
designated housing for disabled families'' in addition to the PHA
meeting the other requirements imposed by section 7, which requirements
include the submission of the allocation plan. The information required
by section 7(e) to be contained in this application largely focuses on
the PHA's supportive services plan. Section 7(e) requires that the PHA
describe the supportive service needs of the persons with disabilities
that the proposed designated project is expected to serve, and the
manner in which these services will be provided to the disabled
families; and identify the service provider who will provide the
supportive services to the designated housing population. (The service
provider is the person or entity licensed under applicable State or
local law to provide the supportive services for the designated housing
population.)
The application for designated housing for disabled families should
not be construed to mean, and subpart B would clarify that it does not
mean, that PHAs only may provide supportive services to disabled
families occupying designated projects for disabled families. As
discussed earlier in Section II of this preamble, section 7(d) provides
that PHAs shall meet, to the extent practicable, the housing and
supportive service needs of eligible families applying for assistance
under this title. Since eligible families applying for assistance under
title VI of the 1992 Act include elderly families, the regulation
encourages PHAs to provide supportive services to projects designated
for occupancy by elderly families, and by disabled families and elderly
families, in addition to providing supportive services to those
projects designated for occupancy by disabled families. The Department
recognizes that PHAs have been providing supportive services to elderly
families occupying public housing. A supportive services plan is not
necessary to continue the delivery of these services to elderly
families, or to initiate the delivery of supportive services to elderly
families occupying designated housing for elderly families.
In designating a project (or portion thereof) for occupancy by
disabled families, a PHA may not designate the project for occupancy by
persons who have a specific disability. For example, PHAs may not
designate a project for occupancy only by persons who have
developmental disabilities, or by persons with HIV disease. PHAs may
limit access to a designated project to only those persons who need the
types of services that are being provided.
In addition to listing the information required to be contained in
the allocation plan and in the application for designated housing for
disabled families, subpart B would list the information to be included
in the PHA's updated allocation plan. Consistent with section 7,
subpart B requires each PHA that owns or operates a designated housing
project to update its allocation plan not less than once every two
years. The updated allocation plan allows HUD to determine whether the
projections made by the PHA (e.g., with respect to occupancy in the
designated housing project, availability of housing for families who
are not members of the group for whom the project was designated) were
accurate.
Subpart B also would specify the criteria governing approval of
these documents, and the procedures applicable to the submission of
these documents to HUD, and notification of approval or disapproval by
HUD.
* * * The Department specifically invites PHAs and other interested
members of the public to comment on the requirements of the allocation
plan and of the application for designated housing for disabled
families, and to offer any suggestions on how these requirements may be
revised in a way that will facilitate the production of this
information by the PHA without, however, forfeiting any information
that is necessary to accurately assess the impact of designated housing
on the families served by the PHA. As noted earlier in this preamble,
the purpose of the information required to be submitted in subpart B is
to assist the PHA and the Department in assessing the advantages and
disadvantages, if any, of designated housing. Therefore, in commenting
on the requirements of subpart B, the Department requests the
commenters to be mindful of this purpose, and of those requirements
that are statutorily imposed.
Subpart C--Operating Designated Housing
Subpart C would require designated projects to be operated in
conformity with all applicable public housing regulations and
requirements, including compliance with nondiscrimination and
accessibility requirements and regulations. Subpart C also would
incorporate the special admission and occupancy requirements imposed by
section 7.
The special admission and occupancy requirements applicable to
designated housing include, among others, that in determining priority
for admission to occupancy in projects that have been designated in
accordance with the procedures established in section 7, the PHA may
make units in such projects available only to the types of families for
whom the project is designated. For designated projects for elderly
families, section 7 permits PHAs to make units available to near-
elderly families if there are an insufficient number of elderly
families to fill all the units in a designated project.
The special admission and occupancy requirements applicable to
designated housing also include a provision that, notwithstanding the
authority to make units in a designated project available only to the
types of families for whom the project is designated, the PHA shall
make any dwelling unit that is ready for occupancy in such a project
and that has been vacant for more than 60 consecutive days generally
available for occupancy without regard to the types of families for
whom the project was designated.
Compliance with Nondiscrimination and Accessibility Requirements in
the Designated Housing Process.
With respect to compliance with nondiscrimination and accessibility
requirements, the proposed rule would provide that the approval to
operate a designated project does not relieve a PHA of its obligations
to comply with the Fair Housing Act (42 U.S.C. 3601-3619) and with
section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). While a
PHA may designate a project or portion thereof for occupancy solely by
disabled families and/or elderly families, in accordance with the
procedures of part 945, the PHA also must administer the designated
project, as well as its additional housing resources, in a manner that
does not violate either section 504 or the Fair Housing Act.
An example of application of the Fair Housing Act requirements is
as follows. A person with a disability who is residing in a project
designated for occupancy by disabled families requires an accommodation
in service that differs from the supportive services provided to the
designated project. If it is determined that the accommodation (1) may
be necessary to afford the individual equal opportunity for the use and
enjoyment of a dwelling unit or public and common use areas, and (2) is
reasonable (i.e., a reasonable accommodation), the accommodation must
be provided by the PHA in accordance with the requirements of the Fair
Housing Act. Alternatively, if a person with a disability requires a
reasonable accommodation and has been offered, but has declined, to
live in a designated project where supportive services are provided,
the PHA must provide the reasonable accommodation, even if the
accommodation is identical or similar to the services provided in the
designated project.
An example of the application of section 504 requirements is as
follows. A PHA designates a certain number of units scattered within a
public housing project for occupancy by persons with disabilities, some
of whom are in need of various features of accessible design within the
dwelling units and premises, and all of whom are in need of a range of
regularly provided supportive services, such as meal services,
transportation, nonmedical counseling, and assistance with housekeeping
and other chores. The PHA cannot require a person who uses a wheelchair
to live in the designated project. Section 504 requires, to the maximum
extent feasible, and subject to reasonable health and safety
requirements, that accessible dwelling units be made available
throughout the PHA's projects, and in a range of sizes and amenities.
Section 504 also requires housing adjustments when such adjustments to
policies and practices do not change the basic nature of the program,
or result in undue financial and administrative burdens. Section 504
also requires PHAs to operate each existing housing program or activity
receiving Federal financial assistance so that the program or activity,
when viewed in its entirety, is readily accessible to and usable by
individuals with disabilities. Providing the person who uses a
wheelchair with an accessible unit (other than a unit in the designated
project) that accommodates the individual's needs would comply with the
requirements of section 504. Further, it should be noted that section
7(b)(1) provides that the decision of any disabled family not to accept
occupancy in an appropriate type of project shall not adversely affect
the family's opportunities to be offered other appropriate housing
assistance.
In addition to compliance with the Fair Housing Act and section 504
requirements, the Department has determined that title II of the
Americans with Disabilities Act (ADA) (42 U.S.C. 12101-12165) applies
to all PHAs, regardless of their source of funding. Title II of the ADA
(``Public Services'') applies to any program, service, or activity
provided or made available by States and local governments or any
department, agency, special purpose district or other instrumentality
of a State or local government. (The Department will be publishing
guidance for PHAs with respect to title II of the ADA in the near
future.)2
---------------------------------------------------------------------------
\2\The Department notes that title III of the ADA (Public
Accommodations and Services Operated by Private Entities) may apply
to PHAs in certain situations. Although title III pertains to
private entities, and not public entities (which include PHAs), the
applicability of title III to PHAs may arise in the designated
housing process in connection with housing at which certain
activities are conducted that would cause the housing to be
classified as a ``place of accommodation'' under title III. PHAs are
encouraged to obtain further information from the Department of
Justice about the possible applicability of title III.
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IV. Proposed Amendments to Part 960, Subpart D
Subpart D of part 960, titled ``Preference for Elderly Families and
Discretionary Preference for Near Elderly Families in Public Housing
Projects for the Elderly,'' establishes a preference for elderly
families and disabled families in ``public housing projects for the
elderly.'' Under existing subpart D, the term ``elderly family'' is
defined to include ``disabled family,'' and although subpart D is
titled ``preference for elderly families,'' subpart D in fact
establishes a preference for elderly families and disabled families in
projects that house a combination of elderly families and disabled
families. Subpart D also permits a PHA to give preference to near-
elderly families for admission to public housing projects for elderly
families and disabled families when the PHA determines, in accordance
with Sec. 960.407 (Selection Preference), that there are not enough
elderly families and disabled families to fill all the units in the
project that are currently vacant, or that are expected to be vacant in
the next 12 months.
Existing subpart D provides that a public housing project, or
portion of a project, acquires the identity of a public housing project
that is reserved for occupancy by elderly (and disabled) families if
the project (1) was ``designated for occupancy by the elderly at its
inception (and has retained that character),'' or (2) ``although not so
designated, for which the PHA gives preference in tenant selection
(with HUD approval) for all units in the project (or for a portion of
units in the project) to elderly families.''
Because section 621 of the 1992 Act distinguishes between elderly
families and disabled families, and because section 622 provides for a
``designated housing process,'' changes are required to be made to
subpart D. This proposed rule would amend subpart D to clarify that the
preference established by subpart D for elderly families for admission
to ``public housing projects for elderly families'' is a preference for
elderly families and disabled families, and that projects for elderly
families are projects for elderly families and disabled families.
Accordingly, subpart D would be retitled ``Preference for Disabled
Families and Elderly Families in Public Housing Projects for Elderly
Families and Disabled Families.''
As noted earlier in this preamble, a public housing project for
disabled families and elderly families is a public housing project, or
portion of a project, that was reserved for occupancy by disabled
families and elderly families at its inception (and has retained that
character), or although it was not so reserved at its inception, the
PHA has obtained HUD approval to give preference in tenant selection
for all units in the project to disabled families and elderly families.
As also noted earlier in this preamble, although subpart D uses the
term ``designated'' and not ``reserved'' HUD proposes to use
``reserved'' in connection with the preference process provided by
subpart D to avoid confusion with ``designated housing process''
provided by new part 945. Additionally, to date, the public housing
projects for disabled families and elderly families provided in
accordance with subpart D have not established a limit on the number or
percentage of disabled families that may be admitted to these projects.
Subpart D, as proposed to be revised by this rule, would continue
this practice, and would not establish a limitation or cap on the
number of disabled families that may be admitted to these projects, but
would clarify that the absence of such a limitation is a condition for
approval to operate public housing reserved for occupancy by disabled
families and elderly families. For example, approval to operate a
public housing project for disabled families and elderly families would
not be granted or would be withdrawn if the PHA establishes a policy of
admitting disabled families to only 10 percent of the units with the
remaining 90 percent of the units reserved for elderly families.
The discretionary preference which subpart D currently provides for
near-elderly families in public housing projects for elderly families
(as this term is used in existing subpart D) would be removed. The
discretionary preference for near-elderly families would be limited to
admission to housing designated for occupancy by elderly families under
part 945, in accordance with the requirements of amended section 7,
which imposes such limit.
The amendments that would be made to part 960, subpart D, would
provide for the definitions of ``family'' and related terms to cross-
reference to the definitions for these terms provided in part 945.
Again, however, if the part 912 final rule is published before the part
945 final rule, then subpart D would provide for a cross-reference to
the definition section in part 912.
V. Submission of Allocation Plans in Advance of Final Rulemaking
Allocation plans submitted to HUD before final rulemaking is
completed will be required to comply with the final regulations.
VI. Other Matters
Environmental Impact
A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations at 24 CFR part 50,
which implements section 102(2)(c) of the National Environmental Policy
Act of 1969 (NEPA). This Finding of No Significant Impact is available
for public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the
Office of the Rules Docket Clerk, Office of the General Counsel,
Department of Housing and Urban Development, room 10276, 451 Seventh
Street, SW., Washington, DC 20410.
Executive Order 12866
This proposed rule was reviewed by the Office of Management and
Budget under Executive Order 12866 as a significant regulatory action.
Impact on Small Entities
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this proposed rule before publication and
by approving it certifies that the proposed rule will not have a
significant impact on a substantial number of small entities. The
proposed rule would establish the requirements and procedures by which
PHAs may designate projects, or portions of projects, for occupancy
only by: (1) Elderly families, (2) disabled families, or (3) disabled
families and elderly families. The proposed rule would incorporate the
requirements established by statute for such designation. The
designation of housing for occupancy by elderly families, disabled
families, or disabled families and elderly families is an option
provided to, not a requirement imposed on, PHAs by this proposed rule.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this proposed rule would
not have potential for significant impact on family formation,
maintenance, and general well-being within the meaning of the order.
This proposed rule would implement the designation process provided by
section 622 of the 1992 Act, the purpose of which is to assist PHAs in
meeting the housing and supportive service needs of disabled families
and elderly families. The supportive services provided by PHAs to
disabled and elderly families are expected to assist these families in
avoiding possible institutionalization, and to reduce unnecessary
stress and financial burden on these families. Thus, the supportive
services component of the program is anticipated to have a beneficial
impact on disabled families and elderly families.
Since the designation process, however, provides for elderly-only
housing and disabled-only housing, there is the possibility that the
designation process authorized by section 622 of the 1992 Act would
limit the availability of housing for (1) disabled families (if a PHA
designates elderly family-only housing), (2) elderly families (if a PHA
designates disabled family-only housing) or (3) families with children
(if a PHA designates disabled families and/or elderly family-only
housing), and thus adversely impact the maintenance and well-being of
these families. (Although it should be noted that PHAs would be
required to admit eligible elderly families with children to designated
projects for elderly families, and admit eligible disabled families
with children to projects designated for disabled families.) The
proposed rule, however, would provide certain protections for all
family types, including the protection provided by HUD's review and
approval of a PHA's housing allocation plan. The purpose of this review
is to ensure that the availability of public housing, and other housing
resources available to the PHA, is not reduced for any of these
families, especially non-elderly disabled families. Thus, the impact on
family maintenance and well being that may result from the designation
process, as proposed to be implemented by the Department through this
rule, would not be significant within the meaning of the order.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this proposed
rule would not have substantial, direct effects on States, on their
political subdivisions, or on their relationship with the Federal
government, or on the distribution of power and responsibilities among
the various levels of government. The proposed rule is limited to
implementing the procedures under which PHAs may opt, subject to
certain requirements and procedures, to designate public housing
projects, or portions of public housing projects, for occupancy by
elderly families, disabled families, or disabled families and elderly
families.
Regulatory Agenda
This proposed rule was listed as sequence number 1635 in the
Department's Semiannual Agenda of Regulations, published on October 25,
1993 (58 FR 56402, 56448) under Executive Order 12866 and the
Regulatory Flexibility Act.
Public Reporting Burden
The information collection requirements contained in this proposed
rule have been submitted to the Office of Management and Budget for
approval under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501-
3520). The following provisions of the proposed rule have been
determined by the Department to contain collection of information
requirements:
----------------------------------------------------------------------------------------------------------------
Number of
Reference Number of responses Hours per Total
Information collection requirement in proposed respondents per response hours\1\
rule respondent
----------------------------------------------------------------------------------------------------------------
Allocation plan................................ Sec. 945.20
3 795 1 20 15,900
Application for designated housing for disabled
families...................................... Sec. 945.20
5 80 1 30 2,400
----------------------------------------------------------------
Total burden hours......................... ........... ........... ........... ........... 18,300
----------------------------------------------------------------------------------------------------------------
\1\There is no annual submission requirement. A PHA may submit an allocation plan or application for designated
housing anytime the PHA seeks to designate a housing project for occupancy by disabled families or elderly
families. Additionally, a PHA may seek designation of more than one project in one allocation plan or one
application.
List of Subjects
24 CFR Part 945
Aged, Grant programs--housing and community development,
Individuals with disabilities, Public housing, Reporting and
recordkeeping requirements.
24 CFR Part 960
Aged, Grant programs--housing and community development,
Individuals with disabilities, Public housing.
Accordingly, chapter IX of title 24 of the Code of Federal
Regulations would be amended as follows:
1. A new part 945, consisting of Secs. 945.101 through 945.303,
would be added to read as follows:
PART 945--DESIGNATED HOUSING--PUBLIC HOUSING DESIGNATED FOR
OCCUPANCY BY DISABLED, ELDERLY, OR DISABLED AND ELDERLY FAMILIES
Subpart A--General
Sec.
945.101 Purpose.
945.103 General policies.
945.105 Definitions.
Subpart B--Application and Approval Procedures
945.201 Approval to designate housing.
945.203 Allocation plan.
945.205 Application for designated housing for disabled families.
Subpart C--Operating Designated Housing
945.301 General requirements.
945.303 Requirements governing occupancy in designated housing.
Authority: 42 U.S.C. 1473e and 3535(d).
Subpart A--General
Sec. 945.101 Purpose.
The purpose of this part is to implement the designated housing
process established by section 7 of the U.S. Housing Act of 1937 (42
U.S.C. 1437e). Section 7 provides public housing agencies with the
option, subject to the requirements and procedures of this part, to
designate public housing projects, or portions of public housing
projects, for occupancy by disabled families, elderly families, or
disabled families and elderly families.
Sec. 945.103 General policies.
(a) Agency participation. Participation in this program is limited
to public housing agencies (PHAs) (as this term is defined in 24 CFR
913.102) that elect to designate public housing projects for occupancy
by disabled, elderly, or disabled and elderly families, as provided by
this part.
(b) Eligible housing. (1) Designation of public housing. Projects
eligible for designation under this part are public housing projects as
described in the definition of ``project'' in Sec. 945.105.
(2) Additional housing resources. To meet the housing and
supportive service needs of elderly families, and disabled families,
including non-elderly disabled families, who will not be housed in a
designated project, PHAs shall utilize housing resources which they
own, control, or have received preliminary notification that they will
obtain (e.g., section 8 certificates and vouchers). PHAs also may
utilize any housing facilities which they own or control and in which
supportive services are already provided, facilitated or coordinated,
such as mixed housing, shared housing, family housing, group homes, and
congregate housing.
(3) Exemption of public housing projects for disabled families and
elderly families. Except as provided in Sec. 945.201, a PHA which seeks
to house all of its disabled families and elderly families in public
housing projects that have been reserved for occupancy by both disabled
families and elderly families is not required to meet the designation
requirements of this part, but is required to meet the requirements of
24 CFR part 960, subpart D.
(c) Family participation in designated housing. (1) Voluntary
participation. The election to reside in designated housing is
voluntary on the part of a family. No disabled family or elderly family
may be required to reside in designated housing, nor shall a decision
not to reside in designated housing adversely affect the family with
respect to occupancy of another appropriate project.
(2) Meeting stated eligibility requirements. Nothing in this part
shall be construed to require or permit a PHA to accept for admission
to a designated project a disabled family or elderly family who does
not meet the stated eligibility requirements for occupancy in the
project (for example, income), as set forth in HUD's regulations in 24
CFR parts 912 and 913, and in the PHA's admission policies.
(d) Supportive services. The requirement in Sec. 945.205 to submit
a supportive services plan for approval to designate housing for
disabled families shall not be construed to mean that PHAs only may
provide supportive services to disabled families occupying designated
housing for disabled families. In accordance with section 7(d) of the
Act, PHAs should seek to provide supportive services to all families
occupying designated housing which need such services.
Sec. 945.105 Definitions.
As used in this part:
Act means the United States Housing Act of 1937 (42 U.S.C. 1437-
1440).
Allocation Plan. See Sec. 945.201.
CHAS means the comprehensive housing affordability strategy
required by section 105 of the National Affordable Housing Act (42
U.S.C. 12705).
Designated housing or designated project means a project (or
projects), or a portion of a project (or projects) (as these terms are
defined in this section), that has been designated for occupancy by
either disabled families, elderly families, or disabled families and
elderly families, in accordance with the requirements of this part.
Disabled families means families whose heads (or their spouses), or
whose sole members are persons with disabilities. The term ``disabled
families'' includes a person with disabilities, two or more persons
with disabilities living together, and one or more persons with
disabilities living with one or more persons who are determined to be
essential to the care or well-being of the person or persons with
disabilities.
Elderly families means families whose heads (or their spouses), or
whose sole members are elderly persons. The term ``elderly families''
includes an elderly person, two or more elderly persons living
together, and one or more elderly persons living with one or more
persons who are determined to be essential to the care or well-being of
the elderly person or persons.
Elderly person means a person who is at least 62 years of age.
Families includes but is not limited to a single person (as defined
in 24 CFR part 912), one or more single persons, a displaced person (as
defined in 24 CFR part 912), disabled families, elderly families, near-
elderly families, and families with children.
FY means Federal Fiscal Year (starting with October 1, and ending
September 30, and designated by the calendar year in which it ends).
Housing has the same meaning as ``project,'' which is defined in
this section.
HUD or Department means the Department of Housing and Urban
Development including its Regional and Field Offices to which authority
has been delegated to perform functions under this part.
NAHA means the National Affordable Housing Act (Pub. L. 101-625,
approved November 28, 1990).
Near-elderly families means families whose heads (or their
spouses), or whose sole members are near-elderly persons. The term
``near-elderly families'' includes two or more near-elderly persons
living together, and one or more near-elderly persons living with one
or more persons who are determined to be essential to the care or well-
being of the near-elderly person or persons.
Near-elderly person means a person who is at least 50 years of age
but below the age of 62.
Person with disabilities means a person who:
(1) Has a disability as defined in section 223 of the Social
Security Act (42 U.S.C. 423); or
(2) Is determined, pursuant to regulations issued by the Secretary,
to have a physical, mental, or emotional impairment which:
(i) Is expected to be of long-continued and indefinite duration,
(ii) Substantially impedes his or her ability to live
independently, and
(iii) Is of such a nature that such ability could be improved by
more suitable housing conditions, or
(3) Has a developmental disability as defined in section 102 of the
Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C.
6001(5)).
The term ``person with disabilities'' shall not exclude persons who
have the disease of acquired immunodeficiency syndrome or any
conditions arising from the etiologic agent for acquired
immunodeficiency syndrome.
Portion of project includes but is not limited to: one or more
buildings in a multi-building project; one or more floors of a project
or projects; a certain number of dwelling units in a project or
projects. (Designation of a portion of a project does not require that
the buildings, floors or units be contiguous.)
Project means low-income housing developed, acquired, or assisted
by a PHA under the U.S. Housing Act for 1937 (other than section 8) for
which there is an Annual Contributions Contract (ACC) between HUD and
the PHA. For purposes of this part, the terms ``housing'' and ``public
housing'' mean the same as project. Additionally, as used in this part,
and unless the context indicates otherwise, the term ``project'' when
used in the singular includes the plural, and when used in the plural,
includes the singular, and also includes a ``portion of a project,'' as
defined in this section.
Public housing or public housing project. See definition of
``project'' in this section.
Public housing agency or PHA means any State, county, municipality
or other governmental entity or public body (or agency or
instrumentality thereof) which is authorized to engage in or assist in
the development or operation of low-income housing.
Public housing project for disabled families and elderly families.
See definition in 24 CFR part 960, subpart D.
Secretary means the Secretary of Housing and Urban Development.
Service provider means a person or organization licensed or
otherwise approved in writing by a State or local agency (e.g.,
Department of Health, Department of Human Services or Welfare) to
provide supportive services. The service provider may provide the
service on either a for-profit or not-for-profit basis.
Single person includes a person who lives alone or intends to live
alone, and includes an elderly person, a disabled person, a displaced
person, and the remaining member of a tenant family.
Supportive service plan. See Sec. 945.205.
Supportive services means services designed to meet the special
needs of tenants, and may include meal services, health-related
services, mental health services, services for nonmedical counseling,
meals, transportation, personal care, bathing, toileting, housekeeping,
chore assistance, safety, group and socialization activities,
assistance with medications (in accordance with any applicable State
laws), case management, personal emergency response, and other
appropriate services.
Subpart B--Application and Approval Procedures
Sec. 945.201 Approval to designate housing.
(a) Designated housing for elderly families. To designate a project
for occupancy by elderly families, a PHA must have a HUD-approved
allocation plan that meets the requirements of Sec. 945.203.
(b) Designated housing for disabled families. To designate a
project for occupancy by disabled families, a PHA must have a HUD-
approved allocation plan that meets the requirements of Sec. 945.203,
and a HUD-approved application, which includes a supportive service
plan, as required by Sec. 945.205.
(c) Designated housing for disabled families and elderly families.
(1) A PHA which seeks to provide a project for occupancy by only
disabled families and elderly families is not required to meet the
requirements of this part, but is required to meet the requirements of
24 CFR part 960, subpart D.
(2) Designation of a project that already has been approved for
occupancy by disabled families and elderly families under 24 CFR part
960, subpart D is not necessary unless a PHA seeks to provide
designated housing for disabled families or designated housing for
elderly families.
(3) A PHA which seeks to provide designated housing for disabled
families or designated housing for elderly families must identify in
its allocation plan, in accordance with Sec. 945.203(6), any public
housing projects that have been reserved for occupancy by disabled
families and elderly families under 24 CFR part 960, subpart D.
Designation of projects approved under 24 CFR part 960, subpart D, as
designated housing for disabled families and elderly families will be
made automatically upon HUD's approval of:
(i) The PHA's allocation plan, in the case of designated housing
for elderly families; and
(ii) The PHA's allocation plan and application, in the case of
designated housing for disabled families.
Sec. 945.203 Allocation Plan.
(a) General. (1) Applicable terminology. As used in this section,
the terms ``initial allocation plan'' refers to the PHA's first
submission of an allocation plan, and ``updated allocation plan''
refers to the biennial update (once every two years) of this plan,
which is described in paragraph (f) of this section. As provided in
Sec. 945.105, the term ``project'' includes the plural (``projects'')
and includes a portion of a project.
(2) Allocation of housing resources. The PHA, in developing a plan
to allocate its housing resources among the population it serves:
(i) Should strive to provide, regardless of the designation
proposed to be made, as broad a range of housing choice as possible to
elderly families and disabled families with respect to the level of
supportive services, and the availability of accessible units;
(ii) Should strive to provide, regardless of the designation
proposed to be made, housing for disabled families in the most
integrated setting possible (designated units need not be contiguous);
(iii) For designated housing for disabled families, may make units
available in conjunction with a specific package of services (such
units may not be limited to persons with a specific disability, but
rather must be made available to all disabled persons who need the
types of services that are being offered).
(b) Consultation in plan development. In preparing the initial
allocation plan, or any update of the allocation plan as provided in
paragraph (f) of this section, the PHA shall consult with:
(1) The State or unit of general local government in whose
jurisdiction the area served by the PHA is located;
(2) Public and private service providers;
(3) Advocates for the interests of disabled families, elderly
families, and families with children;
(4) Representatives of the residents of the PHA's projects,
including representatives from resident councils or resident management
corporations where they exist; and
(5) Other interested parties, including management and residents of
independent living centers, congregate housing and group homes.
(c) Contents of initial plan. The initial allocation plan shall
contain, at a minimum, the information set forth in paragraph (c) of
this section:
(1) Identification of the project to be designated and type of
designation to be made. The first item to be addressed in the
allocation plan is identification of the project to be designated and
the type of designation to be made. The PHA must describe the building
or buildings, floor or floors or units which will comprise the
``designated project'' and their location in the PHA's jurisdiction.
(In providing the identification or location of floors or units to be
designated, the PHA need not identify the precise floors or units to be
designated (e.g., units 202-208, but should identify the projects in
which the designated floors or units are located. The floors or units
need not be contiguous.) The PHA also must state the type of
designation to be made (i.e., housing for disabled families or housing
for elderly families) and the reasons for designation. In discussing
the reasons for the designation, the PHA may refer to data that will be
provided in other parts of the allocation plan.
(2) Identification of groups and persons consulted and comments
submitted. This component of the plan documents that the PHA's proposal
to designate housing under this part was based on consideration of
comments, suggestions and recommendations of all interested parties.
This component of the plan must:
(i) Identify the groups and persons with whom the PHA has consulted
in the development of the allocation plan;
(ii) Include a summary of comments received on the plan from the
groups and persons consulted (these comments, and transcripts of any
meetings that may have been held on the PHA's proposal to designate a
project, must be maintained for a period of five years from the date of
submission of the allocation plan, and must be available for review by
HUD, if HUD requests review); and
(iii) Describe how the plan addresses these comments.
(3) Profile of proposed designated project in its pre-designation
state. This component of the plan provides information on the project
proposed to be designated as the project exists and operates in its
pre-designation stage. This component of the plan must include:
(i) The total number of families currently occupying the project;
and
(A) The number of families who are members of the group for whom
the project is to be designated; and
(B) The number of families who are not members of the group for
whom the project is to be designated;
(ii) An estimate of the total number of elderly families and of
disabled families who are potential tenants of the project (i.e., as
the project now exists), based on information provided by:
(A) The waiting list for the project; and
(B) The Comprehensive Housing Affordability Strategy (CHAS) for the
jurisdiction within which the area served by the PHA is located;
(iii) If the project is proposed to be designated as housing for
elderly families, an estimate of the number of potential tenants who
are non-elderly disabled families based on the same sources of
information provided in paragraphs (c)(3)(ii) (A) and (B) of this
section.
(iv) An estimate of the number of potential tenants who will need
accessible units based on information provided by:
(A) The needs assessment prepared in accordance with 24 CFR 8.25,
and
(B) The CHAS for the jurisdiction within which the area served by
the PHA is located;
(v) The number of units in the project which became vacant and
available for occupancy during the year preceding the date of
submission of the allocation plan to HUD;
(vi) The average length of vacancy for dwelling units in the
project for the year preceding the date of submission of the allocation
plan to HUD;
(vii) An estimate of the number of units in the project that are
anticipated to become vacant and available for occupancy during the
two-year period following the date of submission of the allocation plan
to HUD.
(viii) An estimate of the average length of time all applicants
currently have to wait for a dwelling unit in the project.
(4) Projected profile of project in designated stage. This
component of the plan provides information on projected or anticipated
changes of the information provided in paragraph (c)(3) of this section
as a result of designation of the project. This component of the plan
must:
(i) Discuss the advantages and disadvantages that the choice of
designation is expected to have on families who are members of the
group for whom the project is to be designated for occupancy, and
families who are not members of the g
FR Doc. 94-259 Designated Housing; Public Housing Designated for Occupancy by Disabled, Elderly, or Disabled and Elderly Families
roup for whom the project is to be
designated;
(ii) Identify the source of selection of families for the
designated project (e.g., from current residents of the project,
families currently on the waiting list for the project, residents of
other projects, and potential tenants for the project based on
information provided by the CHAS);
(iii) For projects proposed to be designated for occupancy by
elderly families, provide an estimate of the number of near-elderly
families who may be needed to fill units in the designated project for
elderly families, as provided in Sec. 945.303(c);
(iv) Describe how the PHA will document:
(A) The number of families who are members of the designated group
who will be denied or delayed housing because of a lack of a sufficient
number of designated units; and
(B) The number of families who are not members of the designated
group who will be denied or delayed housing because of an insufficient
number of non-designated units as a result of the designation;
(v) Provide an estimate of the average length of time all
applicants will have to wait for a dwelling unit as a result of
designation of a project (i.e., this information should be given both
for applicants who are members of the group for whom the project is to
be designated, and for applicants who are not members of the group for
whom the group to be designated).
(5) PHA occupancy policies and procedures. This component of the
plan provides information on the PHA's existing occupancy policies and
procedures, and how these policies and procedures may need to be
altered for purposes of operating designating housing. This component
of the plan must:
(i) Contain a description of the PHA's HUD-Approved Tenant
Selection and Assignment Plan, admission policies and procedures,
including:
(A) How these policies and procedures apply to disabled families
and elderly families, especially the preference system and the transfer
policy;
(B) How the waiting list is maintained; and
(C) How dwelling units are assigned;
(ii) Describe any changes the PHA intends to make in its admission
policies to accommodate the designation.
(6) Strategy for addressing the current and future housing needs of
the families in the PHA's jurisdiction. This component of the plan
describes the PHA's strategy for meeting the current and future housing
needs of the families in the PHA's jurisdiction. This component of the
plan must:
(i) Identify any ``public housing projects for disabled families
and elderly families,'' planned or in existence, as provided in 24 CFR
part 960, subpart D;
(ii) Describe the steps to be taken by the PHA to ensure that
disabled families (if a project is to be designated for occupancy by
elderly families) or elderly families (if a project is to be designated
for occupancy by disabled families) maintain access to services and
housing facilities similar to those that otherwise would have been
available to them if the project had not been designated, and a
description of the housing choices currently available, and anticipated
to be available to these families;
(iii) Describe the steps to be taken by the PHA to replace any
accessible units (accessible to persons with varying types of
disabilities) that will be unavailable (as a result of the designation
of a project that contained such units) to families who need accessible
units;
(iv) In the case of designation of a project for elderly families,
identify the additional housing resources which the PHA determines will
be sufficient to provide assistance to not less than the number of non-
elderly disabled families that would have been housed by the PHA if
occupancy in units in the designated project were not restricted to
elderly families, and the PHA's plan for securing these additional
housing resources (one-for-one replacement is not required). These
additional housing resources may include but are not limited to:
(A) Providing local preferences for a specific number of non-
elderly disabled persons for general occupancy projects in accordance
with the preference provisions of 24 CFR 960.211; for public housing
projects for disabled families and elderly families, as provided in 24
CFR part 960, subpart D; or for section 8 certificates and vouchers.
Within the context of the PHA's overall preference system, there must
be a demonstration that the preference will result in the desired
increase in the number of non-elderly disabled persons housed;
(B) Allocation of a certain number of existing or new public
housing units or section 8 certificates or vouchers, which will be
accompanied by a supportive services package, which may be achieved by
the PHA entering into an agreement with a supportive service provider
to make these units or certificates or vouchers available in exchange
for the provider delivering supportive services to disabled families.
Clients of the service provider delivering the supportive services may
not be provided these units or certificates or vouchers before other
non-elderly disabled families already on the PHA's waiting list.
(C) Use of modernization funds to reconfigure units and buildings
to appropriate sizes or uses for non-elderly disabled families;
(D) Designation of projects for occupancy only by disabled families
(projects designated for occupancy by disabled families must have a
supportive services plan in accordance with the requirements of
Sec. 945.205);
(E) Allocation to non-elderly disabled families those units in
other projects owned or controlled by the PHA that will be vacated by
elderly families who will relocate to the project designated for
occupancy by elderly families;
(F) Use of public housing development funds, or funds appropriated
for major reconstruction of obsolete public housing to provide housing
for disabled families;
(G) Use of all or a portion of net increases in units available for
occupancy in a project as a result of the rehabilitation of vacant
units in this project which had been uninhabitable.
(v) Describe any incentives that the PHA intends to offer:
(A) To families who are members of the group for whom a project was
designated for occupancy to achieve voluntary transfers to the
designated project; and
(B) To families who are not members of the group for whom a project
was designated for occupancy to achieve voluntary transfers from the
project proposed to be designated;
(vi) Summarize how the PHA's allocation plan strives to meet the
objectives described in paragraph (a)(2) of this section.
(d) Criteria for allocation plan approval. HUD shall approve an
initial allocation plan, or updated allocation plan, if HUD determines
that:
(1) The information contained in the plan is complete and accurate
(a plan that is incomplete, i.e., missing required statements or items,
will be disapproved), and the projections are reasonable;
(2) Implementation of the plan will not result in excessive vacancy
rates in the project identified in paragraph (c)(1) of this section;
(3) Implementation of the plan will not result in excessive denial
or delay in housing assistance to families on the PHA's waiting list;
(4) The plan for securing sufficient additional housing resources
for non-elderly disabled persons, as provided under paragraph (c)(6) of
this section, can reasonably be achieved; and
(5) The plan conforms to the requirements of this part.
(e) Allocation plan approval or disapproval. (1) Written
notification. HUD shall notify each PHA, in writing, of approval or
disapproval of the initial or updated allocation plan.
(2) Timing of notification. An allocation plan, which meets the
requirements and contains the information required by paragraphs (b)
through (d) of this section, shall be considered to be approved by HUD
if HUD fails to provide the PHA with notification of approval or
disapproval of the plan, as required by paragraph (e)(1) of this
section, within:
(i) 90 days after the date of submission of an allocation plan that
contains comments, as provided in paragraph (c)(2) of this section; or
(ii) 45 days after the date of submission of all other plans,
including
(A) Initial plans for which no comments were received;
(B) Updated plans, as provided in paragraph (f) of this section;
and
(C) Revised initial plans or revised updated plans, as provided in
paragraph (e)(4) of this section.
(3) Approval limited solely to approval of designated housing.
HUD's approval of an initial plan or updated allocation plan under this
section may not be construed to constitute approval of any request for
assistance for major reconstruction of obsolete projects, assistance
for development or acquisition of public housing, or assistance under
24 CFR part 890 (supportive housing for persons with disabilities).
(4) Resubmission following disapproval. If HUD disapproves an
initial allocation plan, a PHA shall have a period of not less than 45
days following notification of disapproval as provided in paragraph
(e)(2) of this section, to submit amendments to the plan, or to submit
a revised plan.
(f) Biennial update of plan. (1) General. Each PHA that owns or
operates a public housing project that is designated for occupancy
under this part shall update its allocation plan not less than once
every two years, from the date of HUD approval of the initial
allocation plan.
(2) Failure to submit updated plan. Failure by the PHA to submit
the updated plan as required by paragraph (f) of this section shall
result in the PHA's designated housing losing its designation in
accordance with the provisions of paragraph (f)(4)(ii) of this section.
(3) Contents of updated plan. The updated allocation plan shall
contain, at a minimum, the following information:
(i) A review of the data and projections contained in the
allocation plan, and the most recent update of the data and
projections;
(ii) An assessment of the accuracy of the projections contained in
the initial allocation plan and in the updated allocation plan;
(iii) The number of times a vacancy was filled in accordance with
Sec. 945.303(d);
(iv) The number of times an application for housing assistance by a
disabled family or elderly family was denied or delayed because of a
lack of appropriately designated units;
(v) The number of times an application for housing assistance by
any family type (disabled, elderly, non-elderly, non-disabled, families
with children, etc.) was denied or delayed because of a lack of an
appropriate number of non-designated units;
(vi) A plan for adjusting the allocation of designated units, if
necessary. This adjustment or reallocation plan shall reflect:
(A) the use of and demand for the designated and non-designated
dwelling units, as revealed by the information submitted as part of the
updated allocation plan; and
(B) An assessment of the availability and adequacy of the
supportive services; and
(4) Criteria for approval of updated plan. (i) HUD shall approve an
updated allocation plan based on HUD's review and assessment of the
updated plan, and where HUD considers appropriate or necessary, any on-
site review and monitoring of PHA performance in the administration of
its designated housing and in the allocation of the PHA's housing
resources. Notification of approval or disapproval of the updated
allocation plan shall be provided in accordance with Sec. 945.203(e);
(ii) If a PHA's updated plan is not approved, existing projects
that have been designated for occupancy by disabled families or elderly
families will revert to their project type before designation. New
projects (for which there was no previous project type) designated for
occupancy by disabled families or elderly families, will be considered
general occupancy projects. PHAs may request that an existing or new
project which lost its designation as a result of disapproval of the
updated plan be approved as a public housing project for disabled
families and elderly families in accordance with 24 CFR part 960,
subpart D.
(5) Notification of approval or disapproval of updated plan. HUD
shall notify each PHA submitting an updated plan of approval or
disapproval of the updated plan, in accordance with the form of
notification and within the time periods required by paragraph (e) of
this section.
Sec. 945.205 Application for designated housing for disabled families.
(a) General. To designate a project for occupancy by disabled
families, a PHA must submit an application, which shall consist of the
allocation plan required by Sec. 945.203, and the supportive service
plan described in paragraph (b) of this section. A project may not be
designated for occupancy by persons with a specific disability. A PHA,
however, may limit access to a designated project for disabled families
to only those persons who need the types of services that are being
offered.
(b) Supportive service plan. The supportive service plan shall
describe how the PHA will provide or arrange for the provision of
supportive services appropriate to meet the needs of the disabled
families who will occupy the designated housing. The supportive service
plan, at a minimum, must:
(1) Identify the number of disabled families that will need
supportive services;
(2) Describe the types of supportive services that will be needed,
and, where known, the length of time the supportive services will be
needed;
(3) Identify the service provider, and describe the experience of
the service provider in providing supportive services;
(4) Describe the manner in which the supportive services will be
provided to the disabled families that the designated housing is
expected to serve (the manner in which the services will be provided
depends upon the type of service offered; e.g., if the package includes
transportation assistance, how will transportation assistance be
provided to disabled families);
(5) If applicable, explain why the supportive services to be
provided require that the disabled families to be served live in
contiguous units;
(6) Identify all sources of funding available to the PHA (State,
local, other Federal, or private funding) for providing supportive
services to residents of the proposed designated housing, or the
supportive service resources to be provided in lieu of funding;
(7) Submit evidence of the commitment(s) provided to the PHA by
these sources to make the funds, or the delivery of supportive services
available to the PHA for at least two calendar years, and evidence of a
general ongoing commitment from these or other sources to continue to
provide funding or supportive services relevant to the needs of the
families that the designated housing is expected to serve;
(8) Identify any public and private service providers, advocates
for the interests of designated housing families, and other interested
parties with whom the PHA consulted in the development of this
supportive service plan, and summarize the comments and recommendations
made by these parties (these comments must be maintained for a period
of five years from the date of submission of the application, and be
available for review by HUD, if HUD requests review of the comments);
(9) If applicable, address the ability to provide residential
supervision of disabled families (on-site supervision within the
designated housing);
(10) Include any other information which the PHA determines would
assist HUD in assessing the suitability of the PHA's supportive service
plan; and
(11) Include any additional information which HUD may request, and
which is appropriate to a determination of the suitability of the
supportive services plan.
(c) Approval. HUD shall approve an application for designated
housing for disabled families if the allocation plan meets the
requirements of Sec. 945.203, and if HUD determines on the basis of the
information provided in the supportive services plan that:
(1) The persons with disabilities who will occupy the designated
project will receive supportive services based on their individual
needs;
(2) The supportive services are adequately designed to meet the
special needs of the disabled families;
(3) The service provider has sufficient experience in providing
supportive services (i.e., the service provider currently administers
or has past experience administering an effective supportive service
delivery program for persons with disabilities, or has demonstrated
capability to obtain expertise based on other supportive service
program delivery experience;
(4) Residential supervision will be provided in the designated
housing sufficient to facilitate the provision of supportive services,
if necessary. (If residential supervision is to be provided, the
supportive plan includes written commitments from the providers of
supportive services to provide appropriate resident supervision);
(5) Written commitment(s) of support from organizations and
entities appear to be sufficient to provide, or fund the cost of
providing, the supportive services needed by the disabled families that
are expected to occupy the designated housing.
Subpart C--Operating Designated Housing
Sec. 945.301 General requirements.
Designated projects shall be operated in conformity with the
regulations of this part, and the regulations applicable to PHAs in 24
CFR chapter IX, including 24 CFR parts 913, 960 and 966, and, in
particular, the nondiscrimination requirements of 24 CFR 960.211(b)(3),
which include but are not limited to section 504 of the Rehabilitation
Act of 1973 (29 U.S.C. 794), Fair Housing Act (42 U.S.C. 3601-3619),
title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d), section 3
of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u), the
Age Discrimination Act (42 U.S.C. 6101-6107), Executive Order 11246 (3
CFR, 1964-1965 Comp., p. 339), Executive Order 11063, as amended by
Executive Order 12259 (3 CFR, 1958-1963 Comp., p. 652 and 3 CFR, 1980
Comp., p. 307), the Americans with Disabilities Act (42 U.S.C. 12101-
12213) (to the extent the Americans with Disabilities Act is
applicable) and the implementing regulations of these statutes and
authorities; and other applicable Federal, State, and local laws
prohibiting discrimination and promoting equal opportunity.
Sec. 945.303 Requirements governing occupancy in designated housing.
(a) Priority for occupancy. Except as provided in paragraphs (c)
and (d) of this section, in determining priority for admission to
designated housing, the PHA shall make units in the designated housing
available only to the category of families for whom the project has
been designated for occupancy.
(b) Compliance with preference regulations. Among the category of
families for whom a project has been designated for occupancy, the PHA
shall give preference for occupancy in accordance with the occupancy
preferences set forth in 24 CFR part 960, subpart B.
(c) Eligibility of near-elderly families for designated housing for
the elderly. If a PHA determines that there are insufficient numbers of
elderly families to fill all the units in a project designated for
occupancy by elderly families, the PHA may, in accordance with an
approved allocation plan, provide that near-elderly families, who
qualify for preferences for occupancy under 24 CFR part 960, subpart B,
may occupy dwelling units in the project. If there are insufficient
numbers of near-elderly families to fill all the units in a project
designated for elderly families, the provisions of paragraph (d) of
this section shall apply.
(d) Vacancies in designated housing. Notwithstanding the authority
provided by this part to designate housing for occupancy by disabled
families, elderly families, or disabled families and elderly families,
a PHA shall make available to families, other than the category of
families for whom occupancy in the project has been designated, any
dwelling unit in the designated housing that is:
(1) Ready for re-rental and for a new lease to take effect; and
(2) Vacant for more than 60 consecutive days.
(e) Tenant choice of housing. (1) Subject to paragraph (e)(2) of
this section, the decision of any disabled family or elderly family not
to occupy or accept occupancy in designated housing shall not adversely
affect:
(i) The family's right to continued occupancy in public housing; or
(ii) The family's admission to public housing; or
(iii) The family's place on a public housing waiting list or the
family's placement on a public housing waiting list.
(2) The protection provided by paragraph (e)(1) of this section
shall not apply to any family whose refusal to occupy or accept
occupancy in designated housing is based on the race, color, religion,
sex, disability, familial status, or national origin of the occupants
of the designated housing or the surrounding area. The protection
provided by paragraph (e)(1) of this section shall apply to an elderly
family or disabled family that declines to accept occupancy,
respectively, in a designated project for elderly families or a
designated project for disabled families, and requests occupancy in a
general occupancy project or a project that houses both disabled
families and elderly families.
(f) Appropriateness of dwelling unit to family size. This part may
not be construed to require a PHA to offer occupancy in a designated
housing dwelling unit to any family who is not of appropriate family
size for the dwelling unit. The temporary absence of a child from the
home due to placement in foster care is not considered in determining
family composition and family size.
(g) Prohibition of evictions. Any tenant who is lawfully residing
in a dwelling unit in a public housing project may not be evicted or
otherwise required to vacate the unit because of the designation of the
project, or because of any action taken by HUD or the PHA in accordance
with this part.
(h) Reserved.
(i) Prohibition of coercion to accept supportive services. As with
other HUD-assisted housing, no disabled family or elderly family
residing in designated housing may be required to accept supportive
services made available by the PHA under this part.
(j) Availability of grievance procedures in 24 CFR part 966. The
grievance procedures in 24 CFR part 966, subpart B, are applicable to
this part.
PART 960--ADMISSION TO, AND OCCUPANCY OF, PUBLIC HOUSING
2. The authority citation for part 960 would continue to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437d, 1437n, 3535(d).
3. The heading of subpart D would be revised, Sec. 960.409 would be
removed, and Secs. 960.401, 960.403, 960.405, and 960.407 would be
revised to read as follows:
Subpart D--Preference for Disabled Families and Elderly Families in
Public Housing Projects for Disabled Families and Elderly Families
Sec.
960.401 Purpose.
960.403 Applicability.
960.405 Definitions.
960.407 Selection preference; other preferences; single person
occupancy.
Sec. 960.401 Purpose.
This subpart establishes a preference for disabled families and
elderly families for admission to public housing projects for disabled
families and elderly families, as defined in Sec. 960.405.
Sec. 960.403 Applicability.
This subpart applies to all dwelling units in public housing
projects, or portions of public housing projects, for disabled families
and elderly families assisted under the U.S. Housing Act of 1937. This
subpart does not apply to section 23 and section 10(c) leased housing
projects or the section 23 Housing Assistance Payments Program where
the owners enter into leases directly with the tenants, or to the
Section 8 Housing Assistance Payments Program, the Low-Rent Housing
Homeownership Opportunities Program (Turnkey III), the Mutual Help
Homeownership Opportunities Program, or to Indian Housing Authorities.
(For applicability to Indian Housing Authorities, see part 905 of this
chapter.) Additionally, this subpart is not applicable to projects
designated for occupancy by disabled families or elderly families in
accordance with 24 CFR part 945.
Sec. 960.405 Definitions.
Designated housing. See definition of ``designated housing'' in 24
CFR part 945.
Disabled families. See definition of ``disabled families'' in 24
CFR part 945.
Elderly families. See definition of ``elderly families'' in 24 CFR
part 945.
Public housing project for disabled families and elderly families
means a public housing project, or portion of a project, that was
reserved for occupancy by disabled families and elderly families at its
inception (and has retained that character), or although it was not so
reserved at its inception, the PHA has obtained HUD approval to give
preference in tenant selection for all units in the project to disabled
families and elderly families.
Sec. 960.407 Selection preference; other preferences; single person
occupancy.
(a) A PHA must give preference to disabled families and elderly
families in determining priority for admission to public housing
projects for disabled families and elderly families. A PHA may not
establish a limit on the number of disabled families or elderly
families who may be accepted for occupancy in a public housing project
for disabled families and elderly families.
(b) The PHA must follow its policies and procedures for applying
the Federal preferences contained in subpart B of this part when
selecting applicants for admission from among disabled families and
elderly families.
(c) Disabled families and elderly families who do not qualify for a
Federal preference contained in subpart B of this part, and who are
given preference for admission under paragraph (a) of this section over
non-elderly families and non-disabled families that qualify for such a
Federal preference, are not subject to the statutory 10 percent
limitation on admission of families without a Federal preference over
families with such a Federal preference that may initially receive
assistance in any one-year period, as provided in 24 CFR
960.211(b)(2)(ii).
(d) If a disabled or elderly applicant is a single person, as this
term is defined in 24 CFR part 912, the disabled single person or the
elderly single person shall be given a preference for admission to
public housing projects for disabled families and elderly families.
(e) In offering available units to disabled families and elderly
families in public housing projects for disabled families and elderly
families, units with accessible features should first be offered to
persons with disabilities that require the accessibility features of
the unit in accordance with the requirements of 24 CFR 8.27 and 24 CFR
100.202(c)(3).
Dated: November 18, 1993.
Joseph Shuldiner,
Assistant Secretary for Public and Indian Housing.
[FR Doc. 94-259 Filed 1-6-94; 8:45 am]
BILLING CODE 4210-33-P
Complete official Federal Register PDF
FR Doc. 94-227 Natural Resource Damage Assessments
[Federal Register Volume 59, Number 5 (Friday, January 7, 1994)]
[Proposed Rules]
[Pages 1190-1191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-227]
[[Page Unknown]]
[Federal Register: January 7, 1994]
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DEPARTMENT OF COMMERCE
15 CFR Part 990
Natural Resource Damage Assessments
AGENCY: National Oceanic and Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of cooperative prespill planning.
-----------------------------------------------------------------------
SUMMARY: The National Oceanic and Atmospheric Administration (NOAA)
wishes to announce that, in conjunction with the American Petroleum
Institute and Coastal States Organization, six regional workshops are
being co-sponsored to allow industry and trustees to begin planning for
cooperative natural resource damage assessments. These planning
sessions will be held immediately following the six regional public
meetings being held by NOAA on the proposed natural resource damage
assessment regulations, which are published in a separate notice in
this issue of the Federal Register. Participation in the workshops will
be limited to specific individuals to allow for meaningful discussions.
However, these meetings will be open to others interested in observing
the process. Those interested in more information should contact one of
the organizations listed below.
ADDRESSES: Written inquiries are to be submitted to: Damage Assessment
Regulations Team (DART), c/o NOAA/DAC, 1305 East-West Highway, SSMC #4,
10th Floor, Workstation #10218, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Doug Helton, NOAA, 301-713-3038, ext.
197; Grayson Cecil, American Petroleum Institute, 703-464-9664; Ray
Perry, Coastal States Organization, 202-508-3860.
SUPPLEMENTARY INFORMATION: In the event of an oil spill, the Oil
Pollution Act of 1990 (OPA), 33 U.S.C. 2701 et seq., provides that
federal, state, Indian tribal and/or foreign natural resource trustees
may determine natural resource injuries, assess natural resource
damages, present a claim, recover damages, and develop and implement a
plan for the restoration, rehabilitation, replacement, or acquisition
of the equivalent of the injured natural resources and their services
under their trusteeship. NOAA was directed by Congress to promulgate
regulations for the assessment of natural resource damages resulting
from a discharge of oil.
In order to foster cooperation between trustees and industry in
damage assessments, a series of six prespill planning workshops will be
held in 1994, following each of the NOAA regional rulemaking meetings
described in a separate notice in today's Federal Register. The
locations and schedules for these workshops as well as the NOAA
regulation review meetings are as follows:
------------------------------------------------------------------------
NOAA review Planning
Location meeting workshop
------------------------------------------------------------------------
New Orleans, LA......................... Jan. 10-11 Jan. 11-12
Chicago, IL............................. Jan. 12-13 Jan. 13-14
Atlanta, GA............................. Jan. 24-25 Jan. 25-26
Boston, MA.............................. Jan. 26-27 Jan. 27-28
San Francisco, CA....................... Feb. 7-8 Feb. 8-9
Seattle, WA............................. Feb. 9-10 Feb. 10-11
------------------------------------------------------------------------
These sessions will be limited to people from the trustee and
industry communities who are familiar with natural resource damage
assessment issues and are prepared to represent the views of their
government or organization. However, these meetings will be open to
others interested in observing the process. The co-sponsors believe
that the workshops will be a positive first step toward producing
agreed upon ground rules for cooperative natural resource damage
assessments. By the same token, they recognize that much will remain to
be done afterward. To make cooperative natural resource damage
assessment a reality, follow-up efforts will be required.
The central premise of these workshops is that a cooperative
approach to damage assessment, as opposed to an adversarial one, will
benefit both trustees and industry and will lead to earlier restoration
of the injured resources. However, because there is no statutory
mandate to plan for cooperative damage assessments in OPA, development
of such a process will have to proceed from a realization by both
industry and trustees that the alternative of costly litigation is both
inefficient and ineffective.
In the exigency of an oil spill, often the best intentions of
trustees and responsible parties are waylaid by the need for hurried
decisions. It is more productive to approach a spill with a vigorous
plan for cooperation between trustees and responsible parties. If, in
the event of a spill, the representatives of the parties have met
beforehand and, even tentatively, considered the ground rules for
working cooperatively in a scientific investigation aimed toward early
recovery of the environment, there is a significantly better chance
that litigation can be avoided. Such an approach must involve the
planning and development of a model for cooperation before the time of
an oil spill, a model that can be applied across the nation. The
workshops will consider the draft documents necessary to develop such a
model.
Dated: December 30, 1993.
Katharine W. Kimball,
Deputy Assistant Secretary for Oceans and Atmosphere.
[FR Doc. 94-227 Filed 1-4-94; 8:45 am]
BILLING CODE 3510-12-P
Complete official Federal Register PDF
FR Doc. 94-226 Natural Resource Damage Assessments
[Federal Register Volume 59, Number 5 (Friday, January 7, 1994)]
[Proposed Rules]
[Pages 1189-1190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-226]
[[Page Unknown]]
[Federal Register: January 7, 1994]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 990
Natural Resource Damage Assessments
AGENCY: National Oceanic and Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of public meetings.
-----------------------------------------------------------------------
SUMMARY: Section 1006(e)(1) requires the President, acting through the
Under Secretary of Commerce for Oceans and Atmosphere, to promulgate
regulations for the assessments of natural resource damages resulting
from the discharge of oil. The National Oceanic and Atmospheric
Administration (NOAA) is proposing those regulations in a separate
Notice in this issue of the Federal Register. NOAA also wishes to
announce a series of six regional meetings to receive additional
comments and permit more detailed discussion of issues presented in
today's proposed rule. The meetings will be held during the months of
January and February, 1994. The locations of the meetings are New
Orleans, LA; Chicago, IL; Atlanta, GA; Boston, MA; San Francisco, CA;
and Seattle, WA. Those persons wishing further information should
contact NOAA at the address below.
ADDRESSES: Written inquiries are to be submitted to: Damage Assessment
Regulations Team (DART), c/o NOAA/DAC, 1305 East-West Highway, SSMC #4,
10th Floor, Workstation #10218, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Linda Burlington or Eli Reinharz,
Office of General Counsel, DART, telephone (202) 606-8000, FAX (202)
606-4900.
SUPPLEMENTARY INFORMATION: The Oil Pollution Act of 1990 (OPA), 33
U.S.C. 2701 et seq., provides for the prevention of, liability for,
removal of, and compensation for the discharge, or substantial threat
of discharge, of oil into or upon the navigable waters of the United
States, adjoining shorelines, or the Exclusive Economic Zone. Section
1006(e) requires the President, acting through the Under Secretary of
Commerce for Oceans and Atmosphere, to develop regulations establishing
procedures for natural resource trustees to use in the assessment of
damages for injury to, destruction of, loss of, or loss of use of
natural resources covered by OPA. Section 1006(b) provides for the
designation of federal, state, Indian tribe and foreign natural
resource trustees to determine resource injuries, assess natural
resource damages (including the reasonable costs of assessing damages),
present a claim, recover damages, and develop and implement a plan for
the restoration, rehabilitation, replacement, or acquisition of the
equivalent of the injured natural resources under their trusteeship.
NOAA has published eight Federal Register Notices, 55 FR 53478
(December 28, 1990), 56 FR 8307 (February 28, 1991), 57 FR 8964 (March
13, 1992), 57 FR 14524 (April 21, 1992), 57 FR 23067 (June 1, 1992), 57
FR 44347 (September 25, 1992), 57 FR 56292 (November 27, 1992), and 58
FR 4601 (January 15, 1993), requesting information and comments on
approaches to developing damage assessment procedures. Prior to
developing the proposed regulations published in this issue of the
Federal Register NOAA conducted a public meeting on March 20, 1991, for
additional public participation into the process and held four regional
workshops during 1991 in Rockville, Maryland; Houston, Texas; San
Francisco, California; and Chicago, Illinois, to learn of regional
concerns in coastal and inland waters. One workshop held in Alexandria,
Virginia, in November, 1991, provided a forum for early discussions of
various economic issues likely to be raised during the damage
assessment 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,
at 58 FR 4601, NOAA published in full the report of the panel
commissioned by NOAA to evaluate the reliability of CV in calculating
passive use values for natural resources.
The proposed rule published elsewhere in this issue of the Federal
Register summarizes the written comments received by the agency and
issues raised during the public meetings and workshops, responds to
those comments, and contains proposed regulatory language.
In order to gather general information and specific comments on the
proposed rule, NOAA will hold a series of six regional meetings in
1994, similar to the series held during the development of the proposed
rule during 1991. These meetings will be open to the public, however
representatives of organizations that have a direct interest in the
assessment process are encouraged to attend. Such interested
organizations can include, but are not limited to: Federal response and
trustee agencies; states; foreign trustees; Indian tribes; industries,
or industry organizations; environmental organizations; natural
scientists; and economists.
The locations and schedules for these meetings are as follows:
New Orleans, LA, January 10-11
Chicago, IL, January 12-13
Atlanta, GA, January 24-25
Boston, MA, January 26-27
San Francisco, CA, February 7-8
Seattle, WA, February 9-10
Due to the necessary time constraints of the meetings, it is
suggested that attendees focus their remarks to the following broad
issues: (1) Prespill planning; (2) preassessment phase; (3) assessment
planning; (4) simplified assessment procedures; (5) site-specific,
detailed assessment procedures; (6) quantification of injuries; (7)
valuation of resources; (8) post-assessment actions; and (8) certain
legal principles involved in the assessment process.
Dated: December 30, 1993.
Katharine W. Kimball,
Deputy Assistant Secretary for Oceans and Atmosphere.
[FR Doc. 94-226 Filed 1-4-94; 8:45 am]
BILLING CODE 3510-12-P
Complete official Federal Register PDF
FR Doc. 94-225 Natural Resource Damage Assessments
[Federal Register Volume 59, Number 5 (Friday, January 7, 1994)]
[Proposed Rules]
[Pages 1062-1189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-225]
[[Page Unknown]]
[Federal Register: January 7, 1994]
_______________________________________________________________________
Part II
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
15 CFR Part 990
Natural Resource Damage Assessments; Proposed Rules
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 990
RIN 0648-AE13
[No. P20105-3196]
Natural Resource Damage Assessments
AGENCY: National Oceanic and Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: Section 1006(e)(1) requires the President, acting through the
Under Secretary of Commerce for Oceans and Atmosphere, to promulgate
regulations for the assessments of natural resource damages resulting
from discharges of oil. By today's Notice, NOAA is seeking comments
concerning the proposed rule. The proposed rule is for the use of
authorized federal, state, and tribal officials referred to in the Oil
Pollution Act of 1990 (OPA) as ``trustees,'' for the assessment of
damages to natural resources and/or services from a discharge of oil.
Natural resource damage assessments are not identical to response or
remedial actions addressed by the larger statutory scheme of OPA.
Assessments are not intended to replace response actions, which have as
their primary purpose the protection of human health, but to supplement
them, by providing a process for determining proper compensation to the
public for injury to natural resources.
DATES: Written comments should be received no later than April 7, 1994.
ADDRESSES: Written comments are to be submitted to Linda Burlington,
Project Manager, or Eli Reinharz, Assistant Project Manager, Damage
Assessment Regulations Team (DART), c/o NOAA/DAC, 1305 East-West
Highway, SSMC #4, 10th Floor, Workstation #10218, Silver Spring, MD
20910.
FOR FURTHER INFORMATION CONTACT: Linda Burlington or Eli Reinharz,
Office of General Counsel, DART, telephone (202) 606-8000, FAX (202)
606-4900.
SUPPLEMENTARY INFORMATION: The Oil Pollution Act of 1990 (OPA), 33
U.S.C. 2701 et seq., provides for the prevention of, liability for,
removal of, and compensation for the discharge, or substantial threat
of discharge, of oil into or upon the navigable waters of the United
States, adjoining shorelines, or the Exclusive Economic Zone. Section
1006(e) requires the President, acting through the Under Secretary of
Commerce for Oceans and Atmosphere, to develop regulations establishing
procedures for natural resource trustees to use in the assessment of
damages for injury to, destruction of, loss of, or loss of use of
natural resources covered by OPA. Section 1006(b) provides for the
designation of federal, state, Indian tribal, and foreign natural
resource trustees to determine resource injuries, assess natural
resource damages (including the reasonable costs of assessing damages),
present a claim, recover damages, and develop and implement a plan for
the restoration, rehabilitation, replacement, or acquisition of the
equivalent of the injured natural resources under their trusteeship.
NOAA has published eight Federal Register Notices, 55 FR 53478
(December 28, 1990), 56 FR 8307 (February 28, 1991), 57 FR 8964 (March
13, 1992), 57 FR 14524 (April 21, 1992), 57 FR 23067 (June 1, 1992), 57
FR 44347 (September 25, 1992), 57 FR 56292 (November 27, 1992), and 58
FR 4601 (January 15, 1993), requesting information and comments on
approaches to developing damage assessment procedures. NOAA conducted a
public meeting on March 20, 1991, for additional public participation
into the process and held four regional workshops during 1991 in
Rockville, Maryland; Houston, Texas; San Francisco, California; and
Chicago, Illinois, to learn of regional concerns in coastal and inland
waters. One workshop held in Alexandria, Virginia, in November, 1991,
provided a forum for early discussions of various economic issues
likely to be raised during the damage assessment 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, at 58 FR 4601, NOAA published in
full the report of the panel commissioned by NOAA to evaluate the
reliability of CV in calculating passive use values for natural
resources.
The proposed rule summarizes the written comments received by the
agency and issues raised during the public meetings and workshops,
responds to those comments, and contains proposed regulatory language
on the various issues raised. Many of the specific comments summarized
in the proposed rule refer to the status report published by NOAA in
the March 13, 1992, Federal Register notice.
This preamble is organized in the following manner: the
Introduction gives an overview of the proposed rule and is followed by
a discussion of each of the subparts of the proposed rule. Subpart A
deals with the optional prespill planning for a damage assessment and
other general topics, subpart B describes the Preassessment Phase, and
subparts C, D, E, F, and G contain the description of the Assessment
Phase and the range of assessment procedures. Subpart H describes the
Post-assessment Phase.
INTRODUCTION
Overview of Process
I. General
The proposed rule simplifies the task of the natural resource
trustee(s) by providing a flexible and logical process for assessing
natural resource damages resulting from a discharge of oil. To assist
the trustee(s) in conducting damage assessments, the proposed rule
defines a number of key statutory terms relevant to damage assessment
and identifies a number of damage assessment techniques that NOAA has
determined are the best available. In addition, the proposed rule is
intended to facilitate public and responsible party (RP) involvement in
the restoration of injured natural resources and/or services by
creating an open, administrative process for selection of restoration
measures. The proposed rule promotes a cooperative approach to
resolution of natural resource damage cases by providing greater
certainty regarding the measure of damages and the process by which
damages will be determined.
The proposed rule is intended to provide the trustee(s) with
maximum flexibility in conducting damage assessments. It is important
to bear in mind that the proposed rule is optional. The trustee(s) is
free to depart from the proposed rule, however, section 1006(e)(2) of
OPA provides that damage assessments conducted pursuant to this
proposed rule shall have a rebuttable presumption of accuracy in any
administrative or judicial proceedings under OPA. Also, this proposed
rule makes possible judicial review on the administrative record for
the Assessment/Restoration Planning process. The administrative record
is the repository of all the information and data considered by the
trustee(s) during the assessment. The trustee(s) may use damage
assessment techniques outside the scope of this proposed rule at the
cost of assuming the burden of proof with respect to those components
of the damage assessment.
The nature and scope of this proposed rule can best be understood
in the context of the overall statutory scheme for natural resource
damage cases. The elements of liability under sections 1002(a) and
(b)(2) of OPA are simple and straightforward: (1) A discharge (2) of
oil (3) from a vessel or facility (4) into or upon navigable waters,
adjoining shorelines or the Exclusive Economic Zone, (5) which results
in injury to natural resources and/or services. Thus, liability is
established when there is some injury to a natural resource and/or
service resulting from a discharge of oil. The damage assessment is
designed to determine and quantify injury, the appropriate restoration
approach, and the damages resulting from the injury.
The damage assessment process described in this proposed rule has
three major phases: (1) The Preassessment Phase; (2) the Assessment
Phase; and (3) the Post-Assessment Phase (See Figure 1).
BILLING CODE 3510-12-P
TP07JA94.000
BILLING CODE 3510-12-C
Prespill planning involves planning and coordination among trustees,
coordination with the Area Committees, potential RPs, and the public to
ensure a cost-effective and coordinated assessment once a discharge of
oil occurs. Thus, it is not part of an incident-specific assessment,
but an important part of preparation by the trustee(s) for fulfilling
their natural resource damage assessment responsibilities during spill
response. The Preassessment Phase involves two basic decisions: The
decision whether to proceed with the Preassessment Phase and the
decision as to the scope of the assessment to conduct, if any. The
Assessment Phase offers a choice involving four types of assessment
procedures: compensation formulas, computer models, expedited
procedures, and comprehensive procedures. The Post-Assessment Phase
gives guidance on using the recoveries effectively and efficiently to
bring about the recovery of injured natural resources and/or services.
NOAA is also developing detailed guidance on various aspects of
damage assessment. It is anticipated that guidance documents will soon
be available on: Preassessment, injury determination and
quantification, and restoration. NOAA will publish a Notice of
Availability when these documents are ready for the public. These
guidance documents are being prepared in conjunction with this
rulemaking to provide more specific technical information to those
performing assessments and restorations under OPA and other interested
members of the public. These documents will not constitute regulatory
guidance nor must they be followed to obtain the rebuttable
presumption. The documents, in their final form, will be made available
through a public information distribution service.
II. Prespill Planning
Prespill planning and coordination by various parties are likely to
be involved in damage assessments under OPA. Prespill activities are a
crucial component of trustee responsibilities. Immediately after an oil
discharge, it is extremely difficult to determine the availability of
baseline scientific data, plan additional data collection, and
coordinate the damage assessment approach of the trustee(s). Thus,
baseline data collection and planning are important to a successful
assessment.
The proposed rule strongly encourages natural resource trustees to
coordinate among themselves, the response agencies, the public, and any
potential RPs interested in developing contingency plans for a damage
assessment. These prespill plans can consist of products of previous
planning efforts, or can be management plans modified or supplemented
to cover damage assessment issues.
In prespill planning, the trustee(s) should anticipate what may be
required to document the damage assessment. The documentation
requirements in the proposed rule are drawn largely from the comparable
process set out in the National Contingency Plan (NCP) for selection of
remedies at hazardous waste sites. The trustee(s) should have the
procedures in place to begin the assessment and restoration planning
process when a discharge occurs.
III. Preassessment Phase
A. Introduction
A natural resource damage assessment begins with the Preassessment
Phase, which consists of two basic components: (1) Preassessment
Determination and (2) Damage Assessment Determination. The
Preassessment Determination requires a decision by the trustee(s)
whether to initiate the Preassessment Phase. During the Preassessment
Phase, the trustee(s) may conduct limited data collection and analysis
(data collection). At the end of the Preassessment Phase, the
trustee(s) decides whether to proceed with a damage assessment in the
Damage Assessment Determination.
The Preassessment Phase also identifies the conditions for
notification, coordination, estimation of assessment costs, reporting,
and emergency restoration. Guidance on conducting the Preassessment
Phase will be available in the Preassessment Phase Guidance Document.
B. Relationship of Preassessment Activities to Response Activities
It is very probable that the Preassessment Phase will be conducted
simultaneously with the On-Scene Coordinator (OSC)-coordinated response
activities. Any activities conducted in the discharge area should be
coordinated with the OSC or designee, especially with regards to damage
assessment trustee(s) requests for response operations resources. The
trustee(s) at the discharge site is likely to be participating as a
part of the OSC's response organization and member of the damage
assessment team. The response activities are under the jurisdiction of
the OSC, whereas the damage assessment activities are under the
jurisdiction of the trustee(s).
C. Preassessment Process
1. Preassessment Determination. After notification, the trustee(s)
should determine if conducting the Preassessment Phase is justified.
The Preassessment Determination is largely a ``desktop'' exercise based
upon readily available information on the discharge and environmental
setting.
Based on that information, the trustee(s) should determine if: (1)
The discharge of oil meets the exclusionary conditions as set forth in
section 1002(c) of OPA; (2) the trustee(s) has authority under OPA to
assert damage claims for natural resources and/or services that may be
adversely affected by the discharge of oil; and (3) there is a
reasonable probability that the trustee(s) can make a successful damage
claim based on the scientific, economic, and legal merits of the case,
i.e., potential for injury resulting from the discharge and successful
and meaningful restoration and/or compensation. If these conditions are
met, the trustee(s) may proceed with the Preassessment Phase.
2. Damage Assessment Determination. In the Damage Assessment
Determination, the trustee(s) decides which, if any, damage assessment
procedure to conduct. Further, damage assessment is appropriate for
those injured natural resources and/or services that can be restored or
for which damages can be estimated. As part of the Damage Assessment
Determination, the trustee(s) should make a preliminary determination
regarding the applicability of the damage assessment procedures. These
decisions should be documented in the Preassessment Phase Report.
The trustee(s) has a great deal of flexibility in selecting
appropriate damage assessment methods. If at any time during the
Preassessment Phase the trustee(s) determines sufficient information
was collected in order to select a damage assessment procedure, the
trustee(s) may complete the preassessment and move into the Assessment
Phase. The proposed rule provides factors for the trustee(s) to
consider in the selection of appropriate assessment procedures.
3. Preassessment Phase Report. At the conclusion of the
Preassessment Phase, the trustee(s) should document briefly:
preassessment actions, such as data collection and emergency
restoration; estimated costs directly related to those actions; and
decisions to proceed with preassessment and damage assessment. The
report should provide sufficient information for input in the damage
assessment/restoration process.
If no further damage assessment actions are taken, the
Preassessment Phase Report becomes the Report of Assessment. If damage
assessment actions are undertaken, the Preassessment Phase Report
becomes part of the Report of Assessment. If the trustee(s) decides to
proceed with an assessment, the trustee(s) should develop a Draft
Assessment/Restoration Plan (DARP) as a guide to how the damage
assessment will be conducted.
D. Data Collection and Analysis
The primary reason for data collection and analysis (data
collection) in the Preassessment Phase is to ensure that there is
sufficient information to evaluate the risk to natural resources and/or
services resulting from the exposure to oil. The scope of the
trustee's(s') data collection should be reasonable in light of the
characteristics of the discharge and natural resources and/or services
potentially affected by the discharge. However, the trustee(s) and
RP(s) may agree to undertake limited injury determination studies to
verify that no significant injury to natural resources and/or services
has resulted from the discharge, although costs for such undertakings
are not recoverable.
When reasonably practicable, the trustee(s) should collect the
following types of information during the Preassessment Phase: (1) Data
that are necessary to make a determination to proceed with the
Preassessment Phase; (2) ephemeral or perishable data that may be lost
if not collected immediately; and (3) necessary data that serves as the
basis for the selected damage assessment procedure, the absence for
which data would prevent the trustee(s) from proceeding with the damage
assessment determination of Sec. 990.23 (i.e., input into the
compensation formulas of Type A models, or the study design for the
Expedited Damage Assessment (EDA) or Comprehensive Damage Assessment
(CDA)).
E. Emergency Restoration
At any time after the discharge, the trustee(s), with the approval
of the OSC, may decide to conduct emergency restoration as long as it
does not interfere with response actions. These actions are designed to
protect natural resources and/or services where there is insufficient
time to await completion of the entire damage assessment/restoration
planning process.
Emergency restoration is not subject to required public review and
comment. Consequently, the proposed rule requires the trustee(s) to
document that any actions taken under this authority are necessary and,
to the extent reasonably practicable, cost-effective.
IV. Assessment Phase
A. General
Through this proposed rule, NOAA is providing the trustee(s) with a
variety of assessment procedures in recognition of the need for
flexibility in dealing with situations that, by their nature, are
incident-specific. The trustee(s) can choose among the various
procedures based upon the circumstances of the discharge or natural
resource and/or service involved.
In the selection process, the trustee(s) should first consider the
simplified procedures, either the compensation formula, the Type A
model, or Expedited Damage Assessment (EDA), before a Comprehensive
Damage Assessment (CDA). The RP(s) may request that the trustee(s) use
a more complex assessment procedure than that chosen by the trustee(s),
only if the RP(s) provides the money up front to fund such an effort,
and it is understood that the trustee(s) has the ultimate
responsibility for the design and management of that study. The
trustee(s) has the option to decline to conduct the more complex
assessment procedure, but must justify and document that decision in
the Report of Assessment.
B. Draft Assessment/Restoration Plan (DARP)
The proposed rule requires that the trustee(s) prepare a DARP for
all assessments. The DARP is the document that gives the trustee(s) the
opportunity to present for comment the chosen approach for restoration,
replacement, rehabilitation, or acquisition of the equivalent of the
injured resources and services. The DARP will also give enough
information about the injury determination and quantification to allow
for a meaningful review of the trustee's(s') determination of the
restoration approach. The DARP will also contain the estimated costs of
implementing the chosen approach. The DARP also may, at the trustee's
discretion, contain a list of the planned valuation studies.
After the DARP has been reviewed by the public, the trustee(s) will
then modify it as appropriate. The DARP then becomes the Report of
Assessment, which is the final description of the restoration approach
selected by the trustee(s) and the estimated costs of implementing that
approach.
Although each assessment will be incident-specific, many elements
of a DARP will be essentially the same. At a minimum, the DARP should
identify the following: (1) The objectives of the trustee(s); (2) how
the trustee(s) plans to accomplish the objectives; and (3) whether the
planned actions are conducted in a cost-effective manner to the extent
reasonably practicable. It is expected that the DARP will address
issues such as study design, data collection and analysis, quality
assurance (QA), data management, and guidelines for conducting the
overall assessment/restoration process and individual studies within
that process. The proposed rule addresses these common components as
they are addressed through the DARP. Not all of these elements will be
required in every DARP, particularly in a compensation formula or Type
A assessment.
As mentioned throughout this preamble and proposed rule, the
trustee(s) is strongly encouraged to develop prespill plans for
conducting an assessment. Those prespill plans could even identify the
type of assessment procedure conducted under certain discharge
scenarios. When the trustee(s) determines that the assessment will be
conducted pursuant to prespill plans, the DARP shall document that
decision and be consistent with the actions identified in the prespill
plan to the maximum extent practicable. If the circumstances of the
incident are such that the trustee(s) determines that the assessment
will be conducted on an incident-specific manner rather than pursuant
to any prespill plans, the DARP shall document that decision.
The trustee(s) will prepare a DARP following the determination to
proceed with further assessment activities. The DARP should be based
upon the findings of the Preassessment Phase, identify the assessment
procedures the trustee(s) is planning to use, describe proposed studies
relating to injury determination and quantification, if any, and
describe proposed actions relating to the determination of the type and
nature of restoration actions, if any, subject to the prespill plans.
Although the trustee(s) should view the development of the DARP as one
process, it may be reasonable to develop the restoration component
separately and at a later date than the assessment component.
The development of a DARP will assist the trustee(s) in conducting
an efficient assessment and, subject to prespill plans, be available
for public review. The scope of the public notice and review should be
comparable to the scope of the extent of the assessment area and
expected effects. The DARP (including comments and responses) is to be
included in the administrative record accompanying the assessment. The
DARP will also ultimately become the Report of Assessment. The
trustee(s) is not required under the proposed rule to provide a review
and comment period of any specific injury determination/quantification
studies, only general notification of the nature and type of assessment
being conducted.
The trustee(s) must review and respond to public comments during
preparation of the restoration component of the DARP. In addressing
comments received concerning the proposed restoration approach, it is
not necessary for the trustee(s) to respond to each comment received.
Comments may be summarized in like-subject areas and responded to only
once.
The proposed rule allows the trustee(s) to modify the restoration
component of the DARP, if necessary. Public review is required for
modifications deemed significant by the trustee(s). Large discharges or
discharges with extensive environmental effects may require the
trustee(s) to develop multi-year plans. Again, modifications of the
annual restoration plans that are significantly different from the
preceding year should be provided for public review.
C. Compensation Formulas
The estuarine/marine and inland waters compensation formulas
described in this proposed rule would be applicable to the vast
majority of oil discharges. An analysis of reported coastal discharges
of oil from 1973-1990 shows that 99.8% of the discharges were less than
50,000 gallons and 99% were less than 10,000 gallons. Compensation
formulas could be used for most of these relatively small discharges,
particularly for those that occur in areas where it would be difficult
to ascertain precise environmental effects, e.g., small discharges in
open water or in areas that are subject to frequent discharges.
These formulas allow an estimate of damages per gallon taking into
account average restoration costs, plus average lost direct use values
pending restoration. The formulas assume various levels of natural
resource effects likely to result from the discharge of oil. These
assumptions consider the amount and type of oil discharged and region
and habitat type in which the discharge occurs. The formulas are
applicable to a wide range of the most commonly discharged oil
products. This approach allows both a national consistency and regional
specificity.
D. Computer Models
NOAA is proposing that the natural resource trustee(s) may use the
Natural Resource Damage Assessment Model for Coastal and Marine
Environments, Version 1.2, known as the Type A model, developed by the
U.S. Department of the Interior (DOI), for damage assessments under
OPA. The Type A model is described at 43 CFR Part 11, subpart D. The
Type A model may be used when the conditions of the discharge are
sufficiently similar to the conditions at 43 CFR 11.33(b).
It is likely NOAA will also recommend the new set of computer
models being developed by DOI. The current computer model, for use in
coastal and marine environments, is being revised to comply with the
circuit court's decision in Colorado v. U.S. Department of the
Interior, 880 F.2d 481 (D.C. Cir. 1989) (Colorado v. DOI) and as part
of the statutorily-mandated review and update. The court in Colorado v.
DOI held that natural resource damage assessments should be based upon
costs to restore, replace, rehabilitate, or acquire the equivalent of
the injured natural resources, plus the diminution of all reliably
calculated values pending recovery. Until the revisions to the Type A
model are completed, the trustee(s) may use the current Type A model
for lost use values and supplement the resulting figure with estimates
of restoration costs and other applicable damages. DOI is also
developing a second computer model for use in the Great Lakes and their
connecting channels.
These new computer models are under development through DOI, but
are not yet available for public review. NOAA is working closely with
DOI in its development of these computer models. Based upon an initial
evaluation of these models, it is likely that NOAA will recommend that
there be available procedures that the trustee(s) may choose to use.
E. Expedited Damage Assessment (EDA)
Included in the proposed rule is a new type of assessment
procedure--Expedited Damage Assessment. EDA reflects a damage
assessment approach that is intermediate between the current Type A and
the CDA procedures. This approach recognizes that a Type A model may
not address all key natural resources and/or services injured or at
risk, particularly for inland discharges. The approach also recognizes
that the size, location, and timing of a given discharge may not
warrant the extensive procedures associated with a CDA. The EDA offers
an option that addresses a broader range of natural resources and/or
services than a Type A model but is less time consuming and less
expensive than a CDA.
The goal of an EDA is to initiate necessary restoration as quickly
as possible by truncating the injury determination and quantification
components. Accordingly, an EDA does not include comprehensive or long-
term injury determination and quantification studies nor does it
address injury for every natural resource and/or service that may be
injured.
An EDA is not necessarily a unitary approach to damage assessment.
It encompasses a range of techniques that permit the trustee(s) to
determine injury based on limited, focused observations. In some
circumstances, an EDA may entail supplementing the Type A model with
field studies. In other situations, an EDA may comprise an abbreviated
CDA approach. Accordingly, the EDA should be viewed as a dynamic,
flexible process rather than a rigid step-by-step approach.
Simply stated, the goals of an EDA are to: (1) Identify and
quantify injuries to selected natural resources and/or services
resulting from a discharge, (2) accomplish the above goal using focused
studies and/or preexisting information, and (3) provide the basis for
restoration and recovery of natural resources and/or services. The
trustee(s) may undertake injury determination and quantification only
for selected natural resources and/or services.
Ideally, data collection in an EDA should not exceed two field
seasons. During this period, the trustee(s) should quickly develop
appropriate injury determination and quantification studies, and a
draft restoration plan. The remaining time should be devoted to
completion of the restoration plan, and to public review of the consent
decree and/or restoration plan.
F. Comprehensive Damage Assessment (CDA)
1. General. Whereas the EDA described above is intended primarily
for situations involving cooperative efforts completed within a
relatively short time, the CDA should be used where it is anticipated
that the assessment will require prolonged (i.e., multi-year) studies.
The CDA is particularly appropriate where the trustee(s) expects
complex effects for which there is little documentation in the
literature. The CDA includes guidance on: injury determination, injury
quantification, restoration planning and costs, and economic valuation.
2. Injury determination. The purpose of the injury determination
component in CDA is to verify injury to natural resources and/or
services. Before beginning the CDA, the trustee(s) must assess the
feasibility of detecting injury based on a scientifically valid study
design.
If an injury cannot be determined or cannot be linked to the
discharge, further assessment efforts should be terminated and the
results of the injury determination component documented in the Report
of Assessment. If injury is determined, the approach for the next two
components (i.e., quantification and damages) must be selected
consistent with the findings of the injury determination.
3. Injury quantification. After establishing that a natural
resource and/or service is injured by the discharge of oil, the next
step calls for quantifying the effects on natural resources and/or
services. Close coordination is required between natural resource
specialists and economists in planning and implementing this phase of
the assessment to estimate values in the economic valuation phase.
Quantification should only be conducted for natural resources and/or
services that can be restored and for which damages will be sought.
The proposed rule allows the trustee(s) to quantify injuries in one
of two ways: (1) Measuring direct changes in the natural resource
itself (i.e., changes in the chemical, physical, or biological
parameters); or (2) measuring changes in the level of services provided
by the natural resource. In either case, injury quantification requires
before-after and reference/contol-impact comparisons. Such comparisons
will depend on the recovery period of both the affected natural
resources and/or services. Quantification will ultimately be essential
for the evaluation of restoration alternatives, and measuring the
compensable value of lost services.
4. Restoration Planning. The purposes of the restoration component
are to: (1) Determine the most appropriate restoration approach for the
recovery of natural resources and/or services injured by a discharge of
oil; and (2) estimate the costs of implementing that approach. The goal
of restoration is to return an injured natural resource and/or service
to as close to the baseline condition as possible. OPA provides the
trustee(s) the following options to remedy injury to natural resources
and/or services: restoration, rehabilitation, replacement, and
acquisition of the equivalent natural resources. Natural recovery is an
option that should always be considered. When acquisition of equivalent
natural resources is selected, the DARP shall define clearly the
relationship of acquired natural resources to the injured natural
resources and/or services.
5. Compensable Values Determination. Natural resources are public
assets. Like other assets they provide a flow of services. The basic
types of services associated with natural resources include, but are
not limited to: (1) Recreational, (2) commercial, (3) ecological, (4)
special significance, and (5) passive use. Lost services may result
from the loss of, or reduction in, the quality or quantity of services
provided by a natural resource as a result of a discharge of oil. The
final estimate of interim lost value will, therefore, depend on the
most likely restoration approach. If no restoration is being considered
for the injured natural resources and/or services, damages include the
value of the lost or impaired/diminshed services from the time of the
discharge through the completion of natural recovery.
The total diminution in the value of natural resources and/or
services, whether with restoration actions or natural recovery, is
referred to as ``compensable values.'' For the purposes of this
proposed rule, compensable values include all reliably calculated
values that comprise the total diminution in value of lost or
diminished services of trust resources as a result of a discharge, from
the onset of the event until recovery to baseline or comparable
conditions is deemed complete by the trustee(s), i.e., interim lost
values. ``Compensable values'' are defined broadly to encompass both
direct use and passive use values that can be reliably calculated in a
manner that is trustworthy or worthy of confidence.
Direct use values are defined as the value individuals derive from
direct use of a resource. Passive use values are defined as the values
individuals place on resources independent of direct use of a resource
by the individual. The term ``nonuse values'' has also been used to
refer to the same concept, but NOAA prefers the term ``passive use
values.''
Factors to consider in calculating compensable values include: (1)
The value of the services injured or lost, (2) the predicted level of
services if the discharge had never occurred, (3) the predicted level
of services given injury and natural recovery, and (4) the predicted
level of services given injury and a feasible restoration plan. For
some categories of economic damage, it will be possible to conduct
site-specific analyses. For example, the economic damages associated
with the loss of access to a marine transportation corridor due to
closure of a waterway can be estimated using existing site-specific
data in most instances. In other cases the trustee(s) may employ
benefits transfer procedures to apply valuation estimates or valuation
functions from existing valuation studies from other contexts to
estimate losses in the present incident.
Several methodologies exist to measure direct use and passive use
values. This proposed rule provides maximum flexibility to the
trustee(s) for selecting any methodology that can provide reliable and
valid resource values and that is appropriate for valuing the injuries
associated with a particular discharge. The trustee(s) will have broad
discretion in selecting among existing and potential new methodological
approaches that may be employed in damage assessment. The flexibility
to exercise professional judgment in selecting and applying specific
analytical techniques is necessary because of the ``site-specific''
nature of discharges of oil. Further, the trustee(s) may use different
methodologies to produce separate damage estimates for different
resource services, so long as there is no double recovery of losses.
The choice of methodological approaches in a particular context will
depend upon the types of injuries associated with a discharge.
Estimates of the value of lost services pending recovery of injured
natural resources and/or services will be submitted as part of the
total damage determination.
V. Post-Assessment Phase
At the conclusion of an assessment the trustee(s) shall prepare a
Report of Assessment. The Report of Assessment, which is the final
description of the restoration approach selected by the trustee(s) and
the estimated costs of implementing that approach serves as the basis
for the judicial review on the record of the assessment.
Once the Report of Assessment is compiled, the trustee(s) should
present to the RP(s) a demand in writing for the total damages. The
demand is the document that is presented as the summation of all
damages claimed by the trustee(s) resulting from the discharge. The
demand will consist of an identification of the discharge, the identity
of the trustee(s), the amount of damages, and the Report of Assessment
as an attachment.
The total damage figure may be divided into two components:
estimated restoration costs and other damages, including but not
limited to assessment costs and compensable values. Judicial review of
that portion of the demand representing costs shall be conducted on the
administrative record. Judicial review of that portion of the demand
representing compensable values shall be conducted with the trustee(s)
receiving the benefit of the rebuttable presumption.
There are several issues involving handling sums recovered. One
issue is management of the account into which sums recovered are
placed. The proposed rule allows trustees to establish a ``joint
trustee account.'' This trustee account should be managed by all
trustees through a mutually agreed upon trustee committee or council.
However, if for some reason, the trustees cannot establish a joint
account, the proposed rule allows the trustees to divide the recoveries
and deposit their respective amounts into separate accounts.
The second issue is the possible pooling of recoveries from more
than one discharge into one account for Regional Restoration Plans.
Whether the trustee(s) establishes joint or separate accounts, there
are two possibilities for handling sums recovered from discharges. The
trustee(s) may establish an incident-specific account into which sums
recovered from a single discharge may be placed. However, an
alternative allowed by the proposed rule would be for the trustee(s) to
establish a combined account into which sums recovered from several
discharges could be placed.
Finally, whether joint or separate, incident-specific or combined,
these various accounts may be established within the trustee agency's
own treasury, in an account under the registry of the applicable
federal court, or in a commercial account. The commercial account may
be an escrow account or any other type of account not prohibited by
law. Each of these various types of accounts should be interest
bearing. The trustee(s) should provide that money may only be withdrawn
from such accounts with trustee(s) approval. Also, because of the
multiple types of accounts, the trustee(s) must maintain appropriate
accounting and reporting methods to ensure the proper use of sums
recovered. The damages representing compensation for injuries to
natural resources and/or services are to be spent to develop and
implement a final restoration plan.
The proposed rule describes two types of post-assessment
restoration plans. First, the trustee(s) may develop an incident-
specific restoration plan to address the effects of the discharge of
concern. This plan shall be based upon the restoration component of the
DARP developed using guidance given in the CDA phase of the proposed
rule.
Second, the trustee(s) is allowed to pool recoveries to apply them
to a Regional Restoration Plan for a specific area. This Regional
Restoration Plan would have to be developed through a public review and
comment process consistent with the restoration planning process
described in the proposed rule. Where such a plan already exists,
whether developed pursuant to this proposed rule or under other
management efforts, that plan may be used subject to the requirements
for such a plan listed in the proposed rule. This Regional Restoration
Plan would allow the trustee(s) to apply several relatively small
recoveries to a specific area, such as a bay or estuary to achieve a
more comprehensive restoration than what may otherwise be achieved
through a smaller, more segmented approach.
Relationship to 43 CFR Part 11
The U.S. Department of the Interior (DOI) has promulgated natural
resource damage assessment regulations under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended (CERCLA), 42 U.S.C. 9601 et seq. These regulations, which are
codified at 43 CFR part 11, establish an administrative process and
procedures for the assessment of damages for injuries to natural
resources affected by a release of a hazardous substance or a discharge
of oil. These regulations currently provide guidance for damage
assessments resulting from both oil and hazardous substances. After the
OPA regulations are promulgated, the 43 CFR part 11 procedures can
still be used to assess damages for natural resource injuries resulting
from a release of a hazardous substance or a discharge of oil not
covered under OPA.
The procedures identified in 43 CFR part 11 provided a base from
which to identify assessment procedures to be promulgated under OPA.
NOAA requested comments on the applicability to oil discharges of 43
CFR part 11, as modified by the court decisions of Ohio v. U.S.
Department of the Interior, 880 F.2d 432 (D.C. Cir. 1989), and Colorado
v. U.S. Department of the Interior, 880 F.2d 481 (D.C. Cir. 1989). In
addition, NOAA and DOI are coordinating their respective rulemakings to
ensure consistency, when practicable, for the trustee(s) and RP(s) in
conducting natural resource damage assessments due to either a
discharge of oil or release of a hazardous substance. Although similar,
these proposed procedures vary in several aspects from the DOI rule.
Procedural Comparison
Figure 2 shows a rough structural comparison between the two
processes. First, this proposed rule strongly encourages actions
conducted prior to a discharge for ``prespill planning.''
BILLING CODE 3510-12-P
TP07JA94.001
BILLING CODE 3510-12-C
NOAA wishes to emphasize with this designation that actions taken
before a discharge actually occurs are important to the conduct of an
assessment after the discharge has occurred.
Second, the Preassessment Phase described in this proposed rule has
been expanded to reflect more clearly those actions that must occur
before beginning an assessment. This phase includes the Preassessment
Determination, similar to the Preassessment Screen found in 43 CFR part
11. However, the decision as to what kind of assessment procedure is
appropriate for a given incident has been moved up to the Preassessment
Phase in this proposed rule in recognition that this decision must, by
necessity, precede the actual assessment.
Third, the Assessment Phase in this proposed rule lists a wider
range of assessment procedures available to the trustee(s). Section
301(c) of CERCLA, which requires the development of the 43 CFR part 11
process, calls for two types of assessment procedures. Section 1006(e)
of OPA, which requires the promulgation of this proposed rule, does not
specify the number of assessment procedures to be made available to the
trustee(s). Therefore, this proposed rule offers four types of
assessment procedures--two new procedures and two procedures based upon
43 CFR part 11. The two new procedures contained in this proposed rule
are the compensation formulas and the expedited damage assessment
procedures. The compensation formulas are the simplest procedure
available and are designed to address the vast majority of discharges,
those under 50,000 gallons. The expedited damage assessment procedure
recognizes the need for a procedure that falls somewhere on a scale
between the current Type A and Type B procedures found in 43 CFR part
11. Besides these two new procedures, NOAA recognizes the need for
assessment procedures like the Type A and Type B procedures. Therefore,
NOAA is proposing to adopt the use of the current Type A procedure of
43 CFR part 11, subpart D, for use in assessments conducted pursuant to
this proposed rule. Finally, NOAA has also used the current Type B
procedure as a base to develop the comprehensive damage assessment
procedure in this proposed rule. The current Type B process has been
modified to allow a streamlining of the process to recognize the
dynamic nature of a discharge of oil, even a discharge requiring a
multi-year assessment process.
Fourth, the Post-assessment Phase of this proposed rule is
structured in a similar way to 43 CFR part 11. NOAA recognizes that, at
the completion of a damage assessment, the same basic actions are
necessary.
Substantive Comparison
In reviewing this proposed rule, the reader will find numerous
substantive differences between this proposed rule and 43 CFR part 11.
Some of these differences are dictated by the differences between OPA
and CERCLA. Other differences are necessary either to reflect lessons
learned in damage assessments in the last several years or to
acknowledge the inherent differences between oils and hazardous
substances. One example of the substantive differences between the two
rules is in the components of the assessment procedures. In this
proposed rule, restoration planning and compensable value determination
are separated, as opposed to the ``Damage Determination'' step of 43
CFR part 11. This separation is necessary to allow a clear line for the
record review of the restoration component without trying to include
the compensable valuation component into that review. Other substantive
differences appear throughout the proposed rule.
Issues of Interest in Proposed Rule
Several specific issues within the rulemaking process have been the
focus of attention among interested parties. Some of the interest is in
response to the fact that damage assessment regulations were
promulgated under CERCLA. These current regulations, codified at 43 CFR
part 11, apply to both hazardous substances and oils. The OPA rule,
when it becomes effective, will supersede those parts of the CERCLA
rule that deal with oil. Therefore, NOAA is specifically seeking
comments on those aspects of this proposed rule that are different from
the CERCLA rule.
Although the entire proposed rule is open for comment, NOAA is also
particularly interested in receiving comments on several issues that
have drawn much interest from very different points of view. These
issues include: The appropriate standard of judicial review of damage
assessments; the proposed definition of assessment costs; causation as
it relates to injury; the use of a compensation formula and the nature
of its results; and whether the trustee(s) may pool recoveries from
various ``small'' discharges to conduct restoration efforts from a
regional or watershed approach. Specific economic issues include: the
recovery of passive use values for natural resources and the
measurement of these values using the contingent valuation method; and
the appropriate discount rate to use in converting damages to current
dollars. Each of these issues is discussed in the following pages.
Review on the Record
Section 1006(c) of OPA provides that the trustees shall ``develop
and implement a plan for the restoration, rehabilitation, replacement,
or acquisition of the equivalent, of the natural resources under their
trusteeship.'' Section 1006(c)(5) provides that ``plans shall be
developed and implemented under this section only after adequate public
notice, opportunity for a hearing and consideration of all public
comment.'' NOAA is proposing to implement these provisions by requiring
the trustee(s) to document development of restoration plans in an
administrative record through notice and comment procedures.
A majority of the commenters who have spoken to the issue of the
administrative record and judicial review ``on the record'' support the
concept. Several commenters pointed out that these assessments involve
highly technical, scientific findings in which courts have
traditionally treated the agency's determination with great deference.
Therefore, the commenters conclude that judicial review of the
assessment/restoration plan should be conducted on the administrative
record, applying an arbitrary and capricious standard.
Other commenters, however, contend that NOAA would exceed its
statutory authority in granting such a standard of review. Several
commenters stated that the responsible party has the legal right to a
jury trial in natural resource damage assessment disputes as guaranteed
by the United States Constitution. The commenters argued that every
CERCLA natural resource damage case that has addressed the issue has
required a jury trial for these actions at law, therefore, issues
related to the selection of assessment/restoration plans must be
decided by a trial court.
NOAA notes that the administrative record provisions in the
proposed rule are intended to implement several important policy
concerns expressed by Congress in OPA. NOAA has considered
administrative law principles and various comparable policies found in
CERCLA to be relevant to the natural resource damage assessment process
in several areas. The administrative record provisions of this proposed
rule are intended to create an open assessment/restoration process to
allow an objective evaluation of how to restore or replace resources
injured by discharges of oil. Whether these provisions would result in
``record review'' is ultimately the decision of the courts. However,
NOAA feels that record review is essential for the type of expeditious,
fair assessments called for by OPA, and specifically asks for comments
on this approach.
Assessment Costs
OPA allows recovery of damages for injury to natural resources as
well as the reasonable costs of assessing those damages. Under the
CERCLA rule, reasonable costs are defined in terms of the costs being
less than the anticipated damage amount. NOAA has received several
comments in support of adopting the CERCLA rule's definition of
``reasonable costs'' to avoid exorbitant assessment costs. However,
some commenters have argued that it is difficult at the onset of a
discharge to make a preliminary damage estimate that will then be used
to shape the subsequent assessment.
Within the proposed rule, NOAA is defining reasonable costs to mean
those costs associated with performing an assessment in accordance with
the proposed rule. The proposed rule, in turn, gives guidance for each
phase of the assessment as to the reasonableness of assessment
activities. The proposed rule requires that any studies or procedures
be directly related to the purpose of the assessment and are conducted
in a cost-effective manner. This approach does not require the
trustee(s) in the early stages of a discharge to devise a preliminary
estimate of total damages likely to result from that discharge.
However, the proposed rule does require that the assessment be
conducted in such a manner to avoid unnecessary and excessive costs.
Injury/Causation
Under section 1002 of OPA, liability is established when there is
any injury to a natural resource resulting from a discharge of oil.
Injury under OPA encompasses the phrases ``injury to,'' ``destruction
of,'' ``loss,'' and ``loss of use.'' The definition of ``injury''
proposed by NOAA is different from that contained in the CERCLA rule.
According to the CERCLA rule, injury is defined as ``a measurable
adverse change, either long- or short-term, in the chemical or physical
quality or the viability of a natural resource resulting either
directly or indirectly from exposure to a discharge of oil or release
of a hazardous substance, or exposure to a product of reactions
resulting from the discharge of oil or release of a hazardous
substance.'' The definition of injury under CERCLA incorporates the
concepts of injury and causality. Specific injury definitions and
causation for resources are detailed in the CERCLA rule.
Under the OPA proposed rule, NOAA has attempted to more clearly
delineate these terms. The definition of injury under the OPA proposed
rule is more relaxed because it does not require that there be a
``measurable'' adverse change. Consequently, any discharge is likely to
result in an injury. The OPA proposed rule defines injury as ``any
adverse change in a natural resource, or any impairment of a human or
ecological service provided by a resource.'' Injury causation (i.e.,
definition of ``injury resulting from a discharge'') has been
determined when the trustee(s) has demonstrated that: (1) With direct
exposure, (a) the natural resource was exposed; (b) there is a pathway
between the discharge and exposed natural resource; and (c) the
exposure of oil, its components, or by-products has been shown by
rigorous and appropriate scientific methodology to have an adverse
effect on the natural resource in laboratory experiments or the field;
or (2) in the absence of direct exposure, (a) the adverse effect on or
impaired/diminished use of a natural resource has been shown by
rigorous and appropriate scientific methodology; and (b) the adverse
effect on or impaired/diminished use of the natural resource would not
have occurred but for the fact of the discharge or threat of a
discharge. The rationale for this approach is to simplify the legal
determination of liability. Basically, liability is established by the
presence of oil in the water. The trustee(s), however, recovers damages
by establishing a causal link between the presence of oil and the
observed adverse change in the resource or impairment of a human or
ecological service. Conceptually, this approach does not change
substantially the definition of injury under the CERCLA rule.
Compensation Formulas
The proposed rule offers a new damage assessment procedure in the
form of compensation formulas for both estuarine/marine and inland
waters. The estuarine/marine and inland waters compensation formulas
described in this proposed rule are applicable to the vast majority of
oil discharges. An analysis of reported coastal discharges of oil from
1973-1990 shows that 99.8% of the discharges were less than 50,000
gallons and 99% were less than 10,000 gallons. Compensation formulas
would be used for most of these relatively small discharges. These
formulas would allow an estimate of damages per gallon taking into
account average restoration costs, plus average lost direct use values
pending restoration. For various reasons, passive use values are not
included in these formulas at this time. The formulas assume various
levels of natural resource effects likely to result from the discharge
of oil. These assumptions consider the amount and type of oil
discharged and region and habitat type in which the discharge occurs.
The formulas are applicable to a wide range of the most commonly
discharged oil products. This approach allows both a national
consistency and regional specificity.
Some commenters expressed concern that such formulas may under-
value resources in industrialized or biologically degraded areas.
Others noted several disadvantages in simplified assessments, including
the potential overlapping trustee interests in certain natural
resources, damages will not sufficiently reflect the extent of the
actual injury, and the risk that a compensatory assessment could be
transformed into a punitive exercise.
Since the compensation formula is based upon averages, it is
impossible to include all known coastal habitats and every combination
of discharges. As proposed, the Estuarine and Marine Environments
Compensation Formula is based upon 55 representative province/habitat
combinations, ranging from Northern Maine to the Alaskan coast, the
Hawaiian and Pacific Islands. The Inland (Freshwater) Waters
Compensation Formula is based upon 100 representative province/habitat
combinations representing the Great Lakes and other inland waters by
type, i.e., river, lake, fast flowing stream, etc. By comparing the
habitat of the actual discharge with the province and specific habitat
used to estimate the damages in the formula, the trustee(s) should, in
most cases, find the most applicable scenario. NOAA emphasizes that the
primary advantages of a compensation formula are for simplicity and
cost-effectiveness.
In cases where the circumstances of an actual discharge are
determined to be far out of the bounds of the compensation formula, the
trustee(s) should consider the use of another assessment procedure. The
compensation formulas generate damages based on average restoration
costs and average diminution of value of the affected natural resources
and are thus compensatory as authorized by OPA. Therefore, the
compensation formulas are not akin to punitive damages.
NOAA is also proposing that the damages generated by the
compensation formulas will be conclusive in nature. That is, once the
rule becomes final and survives any judicial review, parties may
challenge the information used in applying the formulas in a particular
assessment, but may not challenge within that assessment the underlying
data used in developing the formulas.
Regional Restoration Plans
Section 1006(f) of OPA requires that sums recovered as damages be
used to develop and implement a plan for the restoration,
rehabilitation, replacement, or acquisition of the injured natural
resources. The proposed rule describes two types of Restoration Plans.
First, the trustee(s) may develop an Incident-Specific Restoration Plan
to address the effects of the discharge of concern. This plan would be
based upon the restoration planning guidance given in the proposed
rule. This plan should serve to define the objectives and approach
based on a sound decisionmaking process for the particular discharge
site. However, under this proposed rule, the trustee(s) would also be
allowed to pool recoveries to apply them to a Regional Restoration
Plan. These plans could be developed on a geographical or habitat basis
to allow the recovery of the system covered by the plan. Where such a
plan already exists, whether developed through prespill planning
efforts or under regular management efforts, that plan may be used if
it has been developed through a public review and comment process that
considers the major factors contained in the restoration planning
guidance in the rule. The plan must also address the same or similar
resource injuries as those identified in the assessment procedure.
These requirements are completely consistent with the current CERCLA
rule, which also allows for pooling damages. This option will likely be
most useful in areas with long-term pollution effects where damages
from a single discharge would be too small to ``restore'' the ecosystem
or where the planning costs for the restoration after a single
discharge would be quite high compared to the damage figure. However,
where a Regional Restoration Plan has not been developed, an Incident-
Specific Restoration Plan must be developed for use of the damages
recovered.
Several commenters have strongly rejected the use of recoveries
from several discharges for an ecosystem, bay, or area approach. The
commenters argued that pooling and usage of funds is contrary to the
principles of compensatory damages and avoidance of double damages
enunciated by Congress in passing OPA. Further, this usage contradicts
section 1006(f) that ``there be a nexus between monies recovered
resulting from a particular spill and their use to restore or enhance
the specific resources `affected by a discharge.''' Other commenters,
however, have supported a pooling of funds in order to fund a
restoration plan for an entire region, provided a legally-approved
regional restoration plan exists.
NOAA does not believe that pooling recoveries for use in a Regional
Restoration Plan contradicts the requirement in OPA that recoveries be
used to restore the resources affected by a discharge. A relatively
small recovery, assessed by a compensation formula, is unlikely to be
sufficient to restore a bay or estuary affected by a discharge where
many forces are working to degrade that ecosystem. By pooling
recoveries, the trustee(s) has a chance to carry out meaningful actions
to help that system recover. The responsible party will be able to
defend against an attempted double recovery by showing how the damage
figure is to be applied within the regional plan.
Resource Values
The major focus on economic issues within the rulemaking has been
the question of what types of values should be included in a damage
assessment and what methods should be used to measure those values.
Section 1006(d) of OPA authorizes the trustee(s) to recover: The cost
of restoring, rehabilitating, replacing or acquiring the equivalent of
the injured or lost natural resources and/or services; the diminution
in value of the injured or lost natural resources pending restoration;
plus the reasonable cost of assessing those damages. In the proposed
rule, the total diminution in value of resources and/or services
affected by a discharge is referred to as compensable values, which
include all reliably calculated values that comprise the total
diminution in value of lost or diminished services of trust resources
as a result of a discharge, from the onset of the event until recovery
to baseline or comparable conditions is deemed complete by the
trustee(s). In accordance with the OPA Conference Report,``diminution
of value'' refers to the standard for measuring resource damages cited
in the D.C. Circuit Court decision on Ohio v. DOI. The Ohio opinion
defines ``use values'' broadly, to encompass both direct use and
passive use values that can be reliably calculated, i.e., calculated in
a manner that is trustworthy or worthy of confidence.
Direct use values are defined as the value individuals derive from
direct use of a natural resource. Direct uses of resources include both
consumptive uses, such as fishing and hunting in which resources are
harvested, and nonconsumptive uses, in which the activity does not
reduce the stock of resources available for others at another time,
such as bird watching and swimming. Passive use values are defined as
the values individuals place on natural resources independent of direct
use of a resource by the individual. The term ``nonuse values'' has
also been used to refer to the same concept, but NOAA prefers the term
``passive use values.'' Passive use values include, but are not limited
to: the value of knowing the resource is available for use by family,
friends, or the general public; and the value derived from protecting
the natural resource for its own sake; and the value of knowing that
future generations will be able to use the resource.
Some interested parties have asserted that passive use value
damages should only be assessed for permanent or long-lasting injuries
to unique natural resources--atypical conditions for discharges of oil.
They argued there is no need for compensation for lost passive use
values when the resource will fully recover and when compensation will
be paid for direct use losses pending restoration.
Others have argued that passive use values should be included in
damage assessment, because exclusion would understate the true cost of
exposing natural resources to environmentally risky activities. They
have also argued that exclusion of passive use values would induce
systematic reallocation of environmentally risky activities to those
environments that generate greater passive use values relative to
direct use values.
NOAA has found no empirical evidence to suggest that a natural
resource must be unique, non-reproducible and/or permanently injured in
order to have significant passive use values. NOAA recognizes that, in
cases involving temporary injury, individuals may not experience a
significant sense of loss because the existence of the resource is not
permanently threatened. NOAA has found ample evidence, from the OPA
Conference Report and the decision in Ohio v. DOI, to believe that
``diminution of value'' refers to the standard for measuring resource
damages cited in Ohio v. DOI. This opinion defines ``use values''
broadly, to encompass both direct use and passive use values that can
be reliably measured. NOAA believes that failure to include all
relevant categories of damages in a claim would understate the true
loss to the American public attributable to a discharge of oil. Under
OPA, and in accordance with the Ohio v. DOI decision, passive use
values are a component of compensable values that are necessary to
fully compensate the public for losses as a result of a discharge, and
to return the public, as nearly as possible, to the level of well-being
it enjoyed before the discharge.
Contingent Valuation Method
In the Ohio decision, the D.C. Circuit Court determined that the
interim lost value portion of the claim was to include total resource
value, encompassing both direct use (recreational, commercial,
cultural/historical) and passive use of resources. In the comments,
there has been substantial discussion about contingent valuation (CV),
the only known methodology for measuring the passive use component of
total resource value. CV is a survey-based approach to the valuation of
nonmarket goods and services that relies on a questionnaire for the
direct elicitation of information about the value of the good or
service in question.
Contingent valuation surveys generally measure total value of a
good or service, which includes both direct use value and passive use
values. Because passive uses of resources leave no behavioral trace,
they are difficult to validate externally. A number of criticisms of CV
pertain specifically to its use in valuing the passive use component of
total use value and the difficulty of external validation of that
component of total value. Proponents of CV assert that these problems
are not inherent to the method and that well-designed and well-executed
CV studies can eliminate them or render them inconsequential.
Though no other methods are available to provide alternative
estimates of the passive use component of total value, it is possible
to develop a variety of tests to evaluate the validity of the
responses. Due to the substantial interest in the topic, NOAA convened
a panel of experts co-chaired by two Nobel laureates, to evaluate the
reliability of CV to measure passive use values. The report issued by
the panel is part of the administrative record of this rulemaking,
along with the comments received from economists, industry
representatives and other interested parties. Based upon information in
the panel's report and other comments, NOAA is recommending several
validity tests in guidance for designing and conducting CV studies
provided in the proposed rule.
NOAA is proposing that reliable estimates of lost passive use value
due to discharges of oil can be estimated using CV so long as the CV
study follows the guidance offered in this preamble and the proposed
regulations. This guidance basically states that the trustee(s) should
follow a conservative approach when designing a CV instrument, that is,
to choose the design that would understate the natural resource damage
rather than overstate the damage.
One commenter has noted that any damage assessment rule authorizing
CV to measure passive use damages could well cost the U.S. economy
hundreds of millions of dollars annually by generating excessively high
estimates of passive use damages and could result in the bankruptcy of
some responsible parties. The proposed rule has been designated as a
``major'' rule because of the significant issues involved in the
rulemaking. However, because of the difficulty of evaluating the
effects of alternatives to this proposal, a Regulatory Impact Analysis
under E.O. 12866 is not necessary and has been waived.
Discounting Damages
Calculation of natural resource damages will generally require the
use of discounting in the estimation of: (1) Estimated restoration
costs; (2) diminution in value of the injured or lost resources pending
restoration; and (3) damage assessment and restoration costs incurred
by the trustee(s). ``Discounting'' is a widely used economic procedure
that allows the trustee(s) to convert past and future damage sums to
current dollars. This conversion is necessary for the trustee(s) to be
able to present a claim for a ``sum certain.'' Currently, the CERCLA
rule requires that a 10% discount rate be used. NOAA is proposing that
the U.S. Treasury rate should be used for discounting a trustee damage
claim.
DISCUSSION
Subpart A
Scope, Applicability, Purpose
OPA provides for the prevention of, liability for, removal of, and
compensation for the discharge of oil into or upon the navigable waters
or adjoining shorelines of the United States, including the natural
resources of the Exclusive Economic Zone. OPA provides for the
designation of federal, state, Indian tribe, and/or foreign officials
to act on behalf of the public as trustee(s) for the nation's natural
resources. In the event that natural resources are injured, destroyed,
lost, or the loss of use of natural resources occurs as a result of a
discharge of oil covered by OPA, these officials are to assess natural
resource damages, present a claim to the RP(s), recover damages, and
develop and implement a plan for the restoration, rehabilitation,
replacement, or acquisition of the equivalent of natural resources and/
or services under their trusteeship.
This part applies to assessments of damages resulting from
discharges of oil where those discharges occurred after the effective
date of OPA (August 18, 1990). Discharges involving mixtures of oil and
hazardous substances would ordinarily be covered by CERCLA. However,
the U.S. Environmental Protection Agency (U.S. EPA) has issued guidance
on the petroleum exclusion under sections 101(14) and 104(a)(2) of
CERCLA. (U.S. EPA Memorandum on the Petroleum Exclusion under the
Comprehensive Environmental Response, Compensation, and Liability Act,
July 31, 1987; BNA Environment Reporter 41:3321, 2/12/88.) Under this
guidance oil covered by OPA would be: (1) Crude oil and fractions of
crude oil including the hazardous substances, such as benzene, toluene,
and xylene, which are indigenous to petroleum and its refined products;
and (2) hazardous substances that are normally mixed with or added to
crude oil or crude oil fractions during the refining process, including
hazardous substances that have increased in level as a result of the
refining process. However, hazardous substances added to petroleum that
increase in concentration through any process other than refining, or
added as a result of contamination of the petroleum during use
(including waste oil), would not be excluded from CERCLA. For example,
the presence of dioxin in oil used as a dust suppressant on highways
would bring a discharge of such a mixture under the jurisdiction of
CERCLA, not OPA.
This part applies to all natural resource damages caused by oil (as
defined by the Clean Water Act amended by OPA) discharged into
navigable waters of the United States. The ``oil'' definition includes
petroleum and non-petroleum (e.g., animal, vegetable, and wood
chemical). A natural resource damage assessment may be appropriate even
in discharges caused by carriers transporting quantities smaller than
the threshold limits that would require OPA response plans. The
determination of when natural resource damage assessment will be
conducted is a responsibility of the trustee(s) acting on behalf of the
public.
NOAA is using in the proposed rule, the OPA definition of natural
resources that provides for various degrees of government regulation,
management or other form of control over the natural resources to make
the OPA natural resource damage provisions applicable. The proposed
rule repeats the statutory language of ``belonging to, managed by, held
in trust by, appertaining to, or otherwise controlled by,'' and thus
covers a broad range of government interest in natural resources on
behalf of the public. Pursuant to that language, general sources of
authority for recovery under the rule could include, but not
necessarily be limited to, relevant treaty or other provision of
international law, constitution, statute, common law, regulation,
order, deed or other conveyance, permit, or agreement.
The statutory phrase ``belonging to'' connotes ownership and would
cover government-owned lands, as well as resources affixed, i.e.,
permanently attached, to such lands. However, the remaining terms,
``managed by, held in trust by, appertaining to, or otherwise
controlled by,'' ensure a wide range of legitimate government interest
in natural resources that may, in fact, be held in private ownership.
Therefore, the proposed rule directs the trustee(s),
FR Doc. 94-225 Natural Resource Damage Assessments
or co-
trustees, to state briefly the authority for asserting trusteeship, or
co-trusteeship in the Preassessment Report and in the Draft Assessment/
Restoration Plan. In describing the natural resources of concern to the
trustee(s), the trustee(s) will cite the relevant treaty or other
provision of international law, constitution, statute, common law,
regulation, order, deed or other conveyance, permit, or agreement
providing the basis for the trusteeship.
This part supplements the procedures established under the National
Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR
part 300, for the identification, investigation, study, and response to
a discharge of oil, and provides procedures for a natural resource
trustee(s) to determine compensation for injuries to natural resources
and/or services that have not been nor are expected to be sufficiently
addressed by response actions conducted pursuant to the NCP.
This part provides for a process to develop a DARP to document the
most appropriate restoration approach for the administrative record,
with its estimated costs, for a particular discharge. Therefore, any
judicial review of the development of the restoration component of the
assessment would be based solely upon the administrative record. Once
the restoration approach is developed, the trustee(s) then can
determine the expected interim lost values. It is anticipated that the
calculation of those values would not be included in the administrative
record and would not, therefore, be reviewed on the basis of the
administrative record.
Response to Comments
Scope, Applicability, Purpose
Comment: Several commenters noted that the damage assessment
procedures outlined in this proposed rule apply only to discharges of
oil under OPA. These commenters pointed out that this rule replaces the
current DOI rule, at 43 CFR part 11, for natural resource damage
assessments in discharges of oil. One of these commenters noted that
the DOI rule cannot be incorporated since parts of that rule were
declared illegal and are not yet revised.
Response: NOAA agrees that the proposed rule only applies to
natural resource damage assessments performed for discharges of oil
under OPA. When this proposed rule is promulgated as a final rule, it
will supersede those parts of the current 43 CFR part 11 that deal with
discharges of oil covered by OPA. The status of 43 CFR part 11 is
immaterial to this ongoing rulemaking since only those sections upheld
by the Court in the Ohio decision were used as a starting point for the
OPA regulations.
Comment: One of these commenters specifically stated that, since
the decisions of Ohio v. U.S. Department of the Interior (Ohio) and
State of Colorado v. U.S. Department of the Interior (Colorado)
concerning 43 CFR part 11 were decided before OPA's passage, those two
decisions are not controlling over NOAA's rule. These commenters argue
that Congress was aware of the decisions but did not incorporate them
in the NOAA charge to promulgate this proposed rule.
Response: NOAA notes that the decisions in Ohio and Colorado cases
are not directly controlling on the OPA rules. However, the decisions
do represent the only existing case law on some of the issues involved
in this rulemaking. Also, Congress did specifically reference the Ohio
decision's definition of ``diminution of value'' in the Conference
Report on OPA.
Comment: Several commenters noted that the natural resource damage
assessment rule is a part of the regulatory scheme covered by OPA.
These commenters urged NOAA to keep this perspective in mind so that
NOAA's rule does not duplicate or overlap other OPA regulations;
therefore, NOAA's rule should not allow punitive damages, since
penalties are set up in other provisions of OPA, nor should this rule
allow scientific research beyond what is needed to determine the
natural resource damages.
Response: NOAA recognizes that this proposed rule is but a small
part of the larger scheme of regulations required by OPA. For example,
this proposed rule would supplement the overall activities surrounding
a response to oil discharges set out in the NCP, 40 CFR part 300. There
are also regulatory requirements for transport of oil, certification of
vessels, etc., called for by Title IV of OPA. These other rulemakings
are separate and apart from this proposed rule. NOAA has been
coordinating with other federal agencies, particularly those other
agencies that have regulatory and planning responsibilities under OPA
to ensure consistency and avoid overlapping requirements.
NOAA also notes that Title VII of OPA authorizes an ambitious
research and development program on oil pollution to cover the basic
research that is beyond a natural resource damage assessment. As noted
elsewhere in the preamble, this proposed rule disallows work beyond
that needed to determine, quantify, restore, rehabilitate, replace,
acquire the equivalent, and value injury to, destruction of, loss of,
or loss of use of natural resources and/or services resulting from a
discharge of oil.
NOAA further recognizes that penalties or other punitive measures
are provided for elsewhere in OPA. The natural resource damage
provisions of OPA are compensatory, not punitive. A discussion of
allowable damages is found in the discussion of Sec. 990.14--``Recovery
of Damages'' and elsewhere in this preamble.
Comment: One commenter recommended that NOAA consider clarifying
whether CERCLA or OPA would cover a particular discharge of oil.
Response: NOAA notes that the previous preamble discussion on the
scope of this proposed rule describes the types of oil that are covered
by OPA.
Comment: One commenter suggested that NOAA's rule should serve to
provide the basic framework from which different state and local
agencies can adopt and expand upon through implementation.
Response: NOAA notes that, while the use of the proposed rule is
optional, it is hoped that the guidance and procedures in this proposed
rule will prove useful to all trustee agencies.
Comment: A few commenters discussed the requirement that new
regulations result in greater benefits than costs to society, as
directed by E.O. 12291 [now E.O. 12866].
Response: NOAA notes that this proposed rule is explicitly designed
to allow for expeditious and fair compensation to the public for
effects of a discharge on the public's natural resources. Purely
speculative damages clearly are not allowed under this damage
assessment process.
Comment: One commenter suggested that the natural resource damage
assessment rule allow for consideration of the size of the business
enterprise responsible for the damages. Another commenter suggested
that damages should be allocated somehow proportionately across the
different stages of oil production, i.e., production, transport, use.
Response: NOAA points out that the RP's ability to pay based on its
financial ``size'' should not be a determining factor. The damage
assessment process required under section 1006(e) of OPA is to
determine the type and extent of adverse effects and define the best
approach for the recovery of the affected natural resources and/or
services. In fact, Congress explicitly removes this concern from the
assessment of damages by allowing uncompensated claims against the
Fund. Allocation across stages of production is not possible within
this proposed rule.
Comment: One commenter stated that loss of subsistence use of
resources should be covered in the natural resource damage assessment
process.
Response: NOAA points out that section 1002(b)(2)(C) of OPA
specifically provides for the recovery of damages for the loss of
subsistence use of natural resources. Such damages are recoverable by
anyone who uses natural resources for subsistence.
Comment: Although several commenters mentioned that section 1006(e)
of OPA provides a rebuttable presumption for assessments performed
pursuant to the natural resource damage assessment rule, one commenter
specifically raised the question of how one might define the phrase
``in accordance with.'' One commenter noted that, so long as the
trustee(s) follows the rule and the public is given the opportunity to
review and comment on the restoration plans called for by section
1006(c)(5), the trustee's(s') determination of damages is granted the
rebuttable presumption. Another commenter suggested that the rebuttable
presumption should only apply to issues and components of an assessment
that are specifically included in the proposed rule. A few commenters
questioned the relationship between the statutorily granted rebuttable
presumption and the NOAA suggestion of assessments being conducted ``on
the record'' to be reviewed under the ``arbitrary, capricious, or
otherwise not in accordance with law'' standard of review. Another
commenter pointed out that the trustee(s) is also entitled to the
rebuttable presumption when presenting a claim to the Fund.
Response: NOAA notes that the damage assessment and restoration
planning process developed through this rulemaking is a framework that
offers both guidance and a range of procedures for the trustee(s) to
design the assessment/restoration approach most appropriate for the
specific discharge. The philosophy of this proposed rule is to provide
flexibility to allow the most cost-effective assessment/restoration
approach for a particular incident while giving guidance on how this
assessment can be conducted using ``good science.''
The rebuttable presumption applies, in the statutory language, to
``any determination or assessment of damages to natural resources.''
This language indicates that the entire assessment, including the
dollar figure is granted the presumption. Given the need for
flexibility in an assessment, the presumption will apply to any part of
the assessment conducted pursuant to this proposed rule, even if some
part of the assessment activities are not specifically listed in the
rule. NOAA also notes that section 1006(e) applies both to actions
against an RP and claims against the Fund.
In response to the commenters' questioning the relationship between
the rebuttable presumption and a review on the record, NOAA notes that
the rebuttable presumption goes to the trustee(s) who conducts an
assessment ``in accordance with'' this proposed rule. This language is
comparable to the ``not inconsistent with the NCP'' language found in
section 107(a)(4)(A) of CERCLA, which allows recovery of response costs
that are not inconsistent with the NCP by the United States, a state,
or an Indian tribe. Therefore, one challenging such costs must show
that the claimant acted in a way that was inconsistent with the NCP. In
a natural resource damage assessment under OPA, the trustee(s) gets a
rebuttable presumption for the assessment conducted ``in accordance
with'' this proposed rule. Therefore, someone challenging the
assessment must affirmatively prove that the assessment was
inconsistent with the assessment process set forth in this proposed
rule.
Reviewing a damage assessment ``on the record'' refines the phrase
``in accordance with.'' The review is of the information, data, and
procedures used in the assessment/restoration planning process, to
determine the type and extent of effects and best approach for
ecosystem recovery. In this way, therefore, the rebuttable presumption
and record review complement each other. (A further discussion of
record review and this proposed rule is provided later in this
preamble.)
Comment: Several commenters noted that NOAA should develop guidance
and technical support documents, rather than rigid rules. One other
commenter, however, stated that the proposed rule should contain a
clear process to ensure the consistent application of the damage
assessment process and gain public trust in that process. This
commenter urged that NOAA not limit the rulemaking to developing
``guidance'' for damage assessment instead of providing clear
requirements. Other commenters recognized that national uniformity is a
desirable goal, but less formalized, i.e., flexible procedures are
preferable in dealing with a wide range of incidents.
Response: NOAA believes that flexibility is important in the
proposed rule. The trustee(s) must be allowed the ability to design an
assessment/restoration approach that is appropriate for the situation
at hand. No national scheme could possibly anticipate all possible
discharge situations. In response to the requests for guidance, NOAA is
providing guidance on the best approaches to an assessment, in addition
to certain required steps and criteria. NOAA is also developing
technical guidance documents on: Preassessment, Injury Determination
and Quantification, and Restoration (Guidance and Bibliography), as
part of this rulemaking.
II. Definitions
Response to Comments
``Acquisition''
Comment: One commenter disagreed with grouping ``replacement'' and
``acquisition'' together, as acquisition implies an off-site activity.
Another commenter indicated that the proposed definition describes
``replacement,'' but the definition of ``acquisition of the
equivalent'' should also incorporate the requirement of ``proximity to
the affected area,'' for the purpose of ``enhancing the recovery * * *
of the ecosystem affected by a discharge.'' In addition, the commenter
stated that the regulations should reflect Congress' preference for on-
site restoration and should limit the availability of acquiring
equivalent resources to those rare situations where the cost of site
specific restoration would be ``grossly disproportionate to the value
of the resources involved.''
Another commenter noted that acquisition must be accompanied by
some effort to restore the discharge-impaired habitat. Acquisition
involves only a transfer of property accompanied by a net loss of the
species affected by the discharge. However, the commenter also stated
that acquisition may be used to replace the loss of resources between
the time of initial loss and full recovery of the habitat affected by a
discharge. One commenter noted that acquisition of equivalent resources
is not the same as replacement because it does not occur in the area
affected by the discharge.
Response: NOAA agrees that the terms ``acquisition'' and
``replacement'' should be defined separately. NOAA recognizes that the
Conference Report accompanying OPA states that the alternative of
acquiring equivalent natural resources should be chosen only when the
other alternatives are not possible, or when the cost of those
alternatives would, in the judgment of the trustee(s), be grossly
disproportionate to the value of the natural resources involved. This
discussion, however, is more appropriate in other parts of the preamble
and proposed rule.
``Baseline''
Comment: One commenter requested a more clear definition of
``baseline.'' Another commenter recommended that the definition of
``baseline'' reflect that, in the absence of reliable data on natural
variability, the baseline condition will be the condition of the
resources that existed at the location and time of the discharge.
Further, the commenter suggested that the definition be replaced or
supplemented with the following definition: Baseline data are those
which have been collected for natural resources and environmental
variables of interest for an extended period of time (typically years)
on a regular basis (e.g., annually, quarterly) up to the time of the
discharge. This database should describe the temporal mean and
variation of the variable(s) of interest, so that statistically
significant departures from this mean could be measured. Baseline data,
therefore, should ``take into account the natural variability that
would have existed at the assessment area.'' The commenter suggested
that ideally, the last sampling period in a baseline would have
occurred immediately prior to the discharge and included specific
locations that are or will be affected by the discharge. The commenter
stated that the early sampling program cannot provide a baseline (as
defined above), and should be clearly distinguished from a baseline.
The early sampling program cannot document the temporal variability in
the natural environment, especially for resources that have life cycles
longer than a few days or environmental variables that have seasonal
components.
Response: NOAA agrees that the definition of baseline should be
clarified and has revised the definition accordingly. The definition of
early sampling has been deleted.
``Biological Resources''
Comment: One commenter recommended that habitats, such as the water
column or substrate, must be included as ``biological resources'' along
with the interrelationships between species that are necessary for a
normal healthy functioning ecosystem. The commenter argued that species
depend on these habitats for successful completion of their normal life
histories. If the discharge adversely affects these ecosystem
components, then it should be presumed that injury to biological
resources has occurred.
Response: NOAA has deleted the definition of ``biological
resources'' along with those for ``air,'' ``drinking water supply,''
and ``surface water.'' NOAA believes that these natural resources are
included in the statutory definition of natural resources, which
encompass ``other resources belonging to, managed by, held in trust by,
appertaining to, or otherwise controlled by,'' the trustee(s). NOAA
takes the position that this provision includes biological resources,
and therefore there is no need for a separate definition. Further, NOAA
interprets the statutory definition as sufficiently broad to include
the water column or substrate. Accordingly, a trustee(s) may seek
damages for injury to the water column or substrate.
``Compensation''
Comment: One commenter suggested ``compensation'' is the sum total
of payment for damages to natural resources. The commenter noted that
payment shall include costs for injury and assessment investigations,
restoration of affected resources in the assessment area, monitoring of
the restoration implementation, necessary mid-course adjustments to the
restoration plan based on monitoring results, and acquisition of
additional habitat for the same or comparable resources affected by the
discharge to offset resource injuries between the time of the discharge
incident and full recovery following implementation of the restoration
plan. The term ``compensation'' must either be incorporated as a part
of the definition for ``restoration or rehabilitation'' or contained in
a separate definition as proposed. This concept for compensation should
also be included within the scope of ``damages.''
Response: NOAA has not specifically defined ``compensation.''
However, Sec. 990.14 of this proposed rule addresses recoveries and
includes items that the commenter suggested should be compensable. The
trustee(s), therefore, may recover: (1) For injury to natural resources
and/or services through the recovery period, including monitoring
costs, (2) costs of emergency restoration, (3) the reasonable costs of
assessment including preassessment and methodologies provided for in
the various assessment procedures, (4) the cost of restoration,
rehabilitation, replacement, or acquiring equivalent resources, and (5)
interest on the amounts recoverable, as provided in section 1005 of
OPA.
``Control Area'' or ``Resource and Reference Area'' or ``Resource''
Comment: One commenter believed ``control area,'' ``control
resource,'' ``reference area,'' or ``reference resource'' need further
definition and clarification. The commenter stated that all have
identical definitions and are cross-referenced in the earlier notice.
The commenter recommended that the terms ``control area'' and ``control
resource'' be deleted or restricted in the regulation, and that the
terms ``reference area'' and ``reference resource'' be used instead.
The word ``control'' should only be used in relation to the laboratory
or some microcosm and mesocosm testing facilities. The commenter
believed that ``control area'' refers to completely controlled systems.
Natural environments, however, are affected by many variables (in time
and/or space). The commenter noted that ``reference area'' data and
information are collected following the discharge, but in areas
unaffected by the discharge. The reference areas should be as nearly
identical to the affected areas as practical, except that there will
not be oil from the incident in the reference area. The reference area
sampling program(s) should be identical to those in the affected areas
in order to conduct quantitative comparisons regarding effects,
recovery, natural variation, etc. Further, the commenter stated the
``reference area'' concept is based on the reality that there may be
frequent and often substantial change in physical, chemical, and
ultimately, biological variables in the natural resources of interest,
due to natural, not man-made, factors. These natural changes should be
monitored so that their influence on the affected, and recovering,
community can be evaluated. The commenter noted that the effect of
natural variation, as documented in reference areas, on affected areas
may be very important in the injury assessment and quantification
phases of the natural resource damage assessment, and thus in the
ultimate damages assessed against the RP.
Response: NOAA recognizes that the terms ``control'' and
``reference'' are distinct. NOAA has incorporated the commenter's
concerns both in the rule and preamble language. NOAA further has
addressed the importance of natural variation in the damage assessment
process.
``Destruction''
Comment: One commenter believed the definition of ``destruction''
is so narrow that almost nothing will be covered because ``total'' and
``irreversible loss'' are very difficult to achieve. Further, the
commenter suggested that this definition be omitted.
Response: NOAA agrees, in part, and has revised the definition by
deleting the phrase ``irreversible loss.''
``Drinking Water Supply''
Comment: One commenter suggested that a ``drinking water supply''
for less than ten people would not justify restoration so that an
alternate supply would be a better answer for the limited period an oil
discharge would affect such a water supply. Another commenter noted the
definition is too broad as it would cover any water supply that one
person might drink once. The commenter suggested that the definition be
amended to read ``drinking water supply'' means any raw or finished
water which is or may be used by a public water system, as defined in
the Safe Drinking Water Act, or as drinking water by one or more
individuals on a regular basis.
Response: NOAA has deleted the definition of ``drinking water
supply'' because it is included in the statutory definition of natural
resources.
``Early Sampling Data''
Comment: One commenter noted ``early sampling data'' are those
obtained in the early sampling of both affected and reference areas
immediately after the discharge occurs. The commenter stated that often
this program will be designed without benefit of baseline or historical
data (as defined earlier). The early sampling program provides data on
the natural resources and environmental variables at the time of the
discharge. It may be described as a ``time slice,'' a ``benchmark,'' or
a ``base point'' in time, compared to a baseline (i.e., a series of
``base points'').
Response: NOAA agrees with the commenter's description of early
sampling data. While NOAA has not included the phrase ``early sampling
data'' in the definitions section, the concepts outlined by the
commenter are included in the preamble and this proposed rule.
``Equivalent''
Comment: Two commenters stated ``equivalent'' resources under this
section are resources that the trustee(s) determines are comparable to
the injured resources. They noted ``equivalent'' resources should be
acquired to enhance the recovery, productivity, and survival of the
ecosystem affected by a discharge, preferably in proximity to the
affected area. Another commenter defined ``equivalent'' as, ``to have
equal power * * * equal in force, amount or value * * * corresponding
or virtually identical especially in effect or function * * *''
Webster's New Collegiate Dictionary (1981). The commenter noted that
NOAA does not define the term ``equivalent'' and recommends a
nationally consistent definition be developed.
Response: The OPA Conference Report, H.R. 101-653 at p. 109,
defines ``equivalent'' to mean natural resources that the trustee(s)
determines are comparable to the injured natural resources. NOAA adopts
a similar definition.
``Exposed to'' or ``Exposure of''
Comment: One commenter noted that the definition of ``exposed to''
properly implies that physical contact with the oil discharge must be
the proximate cause of any compensable natural resource damage.
Response: NOAA disagrees that the definition of ``exposed to''
implies that physical contact with oil discharge must be the proximate
cause of any compensable natural resource damage. NOAA defines
``exposed to'' to mean that all or part of a natural resource that may
be in contact with oil or with any medium containing oil. Further, NOAA
is not limiting recovery of damages to natural resources that have been
exposed to oil (see definition of ``resulting from'').
``Geologic Resources''
Comment: One commenter believed the definition of ``geologic
resources'' is redundant under the OPA regulations and should be
omitted.
Response: NOAA has adopted the statutory definition of natural
resources which implies that ``geologic resources'' are included.
Specifically, the definition includes ``other resources belonging to,
managed by, held in trust by, appertaining to, or otherwise controlled
by,'' the trustee(s). NOAA takes the position that this provision may
include geologic resources, and therefore, there is no need to include
a separate definition of geologic resources.
``Historical Data''
Comment: One commenter believed ``historical data'' are those that
have been collected prior to the incident, but may not have been
collected for several periods (e.g., months, quarters, years) prior to
the incident. This database may provide a description of the resources
in the past, but there may be a temporal discontinuity long enough that
there could have been a significant change in the variable during that
time. The temporal gap, therefore, may be sufficient so that: (a) It
exceeds a few generation times of the ``important'' resources, (b) a
major episodic recruitment event could have occurred, or (c) that a
major disturbance event (e.g., storm) could have occurred. Further,
``historical data'' from areas similar to the affected area, though the
areas may not be suitable as reference areas, may be appropriate.
``Historical data'' may provide a ``gestalt'' about the present
affected areas, in some cases, but may not be appropriate for
quantitative comparison.
Response: NOAA agrees with the commenter's discussion of historical
data and has revised the definition accordingly.
``Natural Resource Damage Assessment''
Comment: One commenter believed the definition of ``natural
resource damage assessment'' should include new scientifically
developed methodologies that may be devised for the unique resource
damage circumstance related to the discharge at hand. Such
methodologies may not necessarily exist in a prescribed state prior to
the discharge.
Response: NOAA agrees and has eliminated the restrictions in the
earlier notice.
``Natural Resources''
Comment: One commenter urged that areas that are privately owned
but that support public natural resources should be included. A
commenter agreed with NOAA's decision not to attempt to limit the broad
statutory definition of ``natural resources'' by providing specific
guidelines on the degree of governmental control necessary to allow
public recovery. The commenter stated that a natural resource located
on private property may have both public and private value, and it is
the trustee(s) who should determine whether the public has an interest
in the resource.
Response: NOAA recognizes that there are times when natural
resources located on private property may have public value. However,
the ``public'' nature of the resource would have to be decided on a
case-by-case basis. At the time of the Preassessment Phase, the
trustee(s) is required to determine if there are resources of concern
to the trustee(s) that might be affected by the discharge. It is at
that time that the determination could be made of the nature of the
public's interest in the resource.
Comment: One commenter stated that NOAA should attempt to ensure
inclusion of all potentially affected trustee resources, such as
archeological resources and park lands or other preserved natural areas
valued particularly for their pristine state, into the natural resource
damage assessment process.
Response: NOAA has included a new definition of ``resources of
special significance.'' This definition is designed to address the
concerns of the comments (see ``resources of special significance'').
``Nonuse (Passive use) Value''
Comment: Two commenters questioned whether a regulatory definition
for passive use value is necessary, except to refer to values that
cannot be reliably calculated. Another commenter urged the inclusion of
the phrase, ``such services encompass values associated with the
knowledge that such resources simply exist as well as associated with
the option to directly use or not use such resources in the future.''
Response: NOAA believes that a definition of nonuse values,
referred to as passive use values, is appropriate and therefore will
continue to include such definition. NOAA's definition of passive use
values is broad and therefore includes the notions included in the
second commenter's proposed definition.
``Oil''
Comment: One commenter contended that unless the material under
consideration is definitely a single hazardous compound derived from
processing oil, it should be classified as ``oil'' (e.g., diesel or
gasoline would be oil for this purpose). Another commenter believed the
definition seems practical and reasonable to focus on what has been
discharged and not on its degradation products. The commenter
recognized the potential for dual regulation (CERCLA and OPA) of one
discharge of oil due to the hazardous constituents contained in some
oils. The same commenter noted, however, that the proposed definition
is cumbersome.
Response: NOAA agrees that the definition of oil is cumbersome and
has revised it accordingly.
``Reasonable Cost''
Comment: One commenter urged NOAA to revise the definition of
``reasonable cost.'' Two commenters urged NOAA to adopt the
requirements in DOI's rule 43 CFR 11.14(ee). One of those commenters
requested adoption of DOI's rule provided it is modified to show that
the reasonable cost test applies to separable subparts of the
assessment, as well as the assessment as a whole. Another commenter
believed that this definition is circular and recommended the cost of a
natural resource damage assessment be reasonable in keeping with the
size of the discharge and type and amount of natural resource damages
to be determined. Another commenter believed the definition is
incomplete, stating that just because a cost can be recovered, does not
mean it is reasonable.
Response: NOAA agrees that the definition in the Advance Notice of
Proposed Rulemaking (ANPRM) is somewhat circular and has revised the
definition. The costs of the damage assessment are deemed reasonable if
the assessment is conducted in accordance with this proposed rule, or
if the costs are otherwise reasonable under the circumstances. NOAA
believes this definition is simpler than the DOI definition.
Comment: One commenter stated that making the definition of
reasonable costs contingent on a preliminary and probably inaccurate
estimate is unreasonable because scientists' present understanding of
the effects of oil pollution is limited. In addition, the full extent
of damages may not be apparent for several years following a discharge.
Response: NOAA's definition of reasonable cost avoids the problems
the commenter identified with respect to the difficulty of ascertaining
reasonable costs based on preliminary information.
``Responsible Party(ies)'' (RP(s))
Comment: One commenter noted that the proposed definition of
``responsible party(ies)'' is confined to ``person or persons.'' The
commenter noted the RP should include the company or corporate entity
that owns or is otherwise responsible for the vessel or facility that
contained the discharged material. The owner of the discharged material
perhaps should also be initially included until the investigation
ascertains responsibility.
Response: NOAA agrees and that definition has been modified in the
proposed rule.
``Restoration or Rehabilitation''
Comment: One commenter endorsed the existing DOI definition of
``restoration,'' as occurring once resources are capable of providing
baseline service levels. This definition is consistent with Ohio v. DOI
as well as OPA's legislative history, which revealed no Congressional
intent to alter that definition. Another commenter agreed that
restoration occurs when the resources are capable of providing the
``without spill'' service levels. One commenter urged NOAA to clarify
the definition as meaning ``measures to restore the services provided
by the affected resources.'' Another commenter agreed with the proposed
definition as encompassing all four management options set forth. The
same commenter, however, urged NOAA to state that these techniques
should be designed to achieve the best possible overall restoration of
resources. One commenter disagreed with grouping ``restoration'' or
``rehabilitation'' together. The commenter argued that ``restoration''
is commonly used as an inclusive term for restoration, rehabilitation
and replacement as all are in situ approaches. For example,
``replacement'' may mean reestablishing a population at the site.
One commenter noted the proposed definitions of ``restoration'' and
``rehabilitation'' appear to expand the measure of natural resource
damages to include restoration of both ``the injured resources'
physical, chemical or biological properties.'' Any attempt by NOAA to
expand the measure of damages to require restoration of the resources'
properties beyond what is necessary to restore their services would be
contrary to economic principles and inconsistent with the structure of
section 1006(d)(1) of OPA. The same commenter suggested the definitions
of ``restoration'' and ``rehabilitation'' should be refined to read
``measures adopted to return injured natural resources to the condition
where they provide the same or substantially similar services as they
would have provided if the spill of oil had not occurred.''
Response: NOAA agrees that the terms restoration and rehabilitation
should be defined separately. In the revised definition, NOAA
distinguishes restoration from rehabilitation. Restoration actions are
designed to return the injured natural resources and/or services to
baseline conditions. The baseline condition is measured in terms of the
physical, chemical, or biological properties of those resources and/or
services prior to the discharge. Rehabilitation refers to actions that
are designed to bring the injured natural resources and services to a
different state from baseline conditions, but still beneficial to both
the environment and public. NOAA agrees with the suggestion that
sometimes a combination of techniques would best serve the overall
goals of resource recovery. Under those circumstances, the trustee(s)
may consider a combination of restoration techniques.
``Restoration, Rehabilitation, Replacement and Acquisition''
Comment: One commenter noted the definitions of ``restoration,
rehabilitation, replacement, and acquisition of equivalent'' resources
that are set forth in the notice do not maintain the hierarchy of
choices and their interrelationship as contemplated by OPA.
Response: The OPA Conference Report specifies that acquisition of
the equivalent resources will be undertaken when the alternatives of
restoration, rehabilitation, and replacement of damaged natural
resources will be technically infeasible or grossly disproportionate to
the value of the resources involved. Discussion regarding the use of
any of these options is addressed elsewhere in the preamble and the
proposed rule.
``Technical Feasibility''
Comment: One commenter suggested the definition of ``technical
feasibility'' seems to preclude the implementation of new or innovative
strategies in restoration/rehabilitation efforts. The commenter
believed that nontraditional approaches should be explored where
appropriate. The commenter also recommended that these approaches
should be encouraged where there is mutual agreement among the
trustees. Another commenter believed the proposed definition of
``technically feasible'' is too stringent. Currently very few recovery
techniques are well known. The same commenter recommended the
definition be revised as, ``technical feasibility means those on-site
restoration actions that are deemed possible following appropriate
planning, implementation, monitoring, and necessary mid-course
corrections of a restoration project.'' The commenter also noted that
project costs shall not be a part of technical feasibility but may be
considered as part of the overall settlement for damages taking into
account technical feasibility of restoration, acquisition, or other
means to make the damaged resources whole over a reasonable period of
time.
Response: NOAA agrees that the definition of technical feasibility
is too stringent and has revised the definition accordingly.
``Trauma''
Comment: One commenter recommended the definition of ``trauma''
include all adverse, sublethal, chemical, physical and behavioral
changes to living fish and wildlife resources, including adverse change
in the presence and activity levels of enzymes and other vital
components of living systems, caused by a discharge of oil and
attendant necessary cleanup and response activities. Trauma may include
disruption of reproductive rate or reproductive cycles normally
associated with a species. As used within this context, the commenter
argued that trauma is an injury and should be included within the scope
of damages.
Response: NOAA does not agree that a separate category of injury
defined as trauma should be included in this proposed rule. The current
injury definition is broad enough to include much of what the commenter
is concerned about.
``Use Value or Values''
Comment: One commenter agreed with the definition for ``use value
or values'' under OPA in the March 13, 1992, Notice.
Response: The proposed rule no longer defines ``use value''
separately, but defines ``compensable values'' to incorporate all use
values, including direct and passive uses.
``Water''
Comment: One commenter recommended ``water'' in the definition be
revised to ``waters of the United States'' consistent with the
definition in the Clean Water Act.
Response: OPA defines ``navigable waters'' to mean the waters of
the United States, including the territorial sea. NOAA has adopted this
definition in the proposed rule.
``Wetlands''
Comment: One commenter recommended that ``wetlands'' be included in
the definition of ``natural resources.''
Response: NOAA has adopted the definition of natural resources from
OPA and believes that the definition encompasses wetlands. Therefore,
there is no need to revise the definition to specifically include
wetlands.
III. Recoveries
Section 990.14 identifies what is recoverable as damages. In
section 1006 of OPA, Congress clearly delineates the measure of damages
to include the costs (both direct and indirect) of restoring,
rehabilitating, replacing, or acquiring the equivalent of the injured
natural resources, the diminution in value of those natural resources
pending restoration, plus the reasonable costs of assessing those
damages. These damages are based upon injuries occurring from the onset
of a discharge of oil through the recovery period (including monitoring
costs), less any mitigation of those injuries by response actions taken
or anticipated, plus any increase in injuries that are a result of
response actions taken or anticipated. Damages may also include the
costs of emergency restoration actions and the reasonable costs of the
assessment, which includes the cost of performing the preassessment,
assessment, and post-assessment phases; administrative or legal or
other enforcement costs, including base and incremental costs, and
expenses necessary for and incidental to the preassessment, assessment,
restoration planning, and post-assessment (including salaries); any
restoration or replacement undertaken; restoration monitoring; mid-
course corrections, and interest on the amounts recoverable as set
forth in section 1005 of OPA. The period for which interest shall be
paid is the period beginning on the 30th day following the date on
which the claim is presented to the RP(s) or guarantor(s) and ending on
the date on which the claim is paid. Interest is to be calculated in
accordance with Section 1005 of OPA. The determination of the damage
amount shall consider any applicable limitations provided for in
section 1004 of OPA.
In accordance with section 1006(d)(3) of OPA, there shall be no
double recovery under this rule. Actions for damages and assessment
costs shall comply with the statute of limitations set forth in section
1017(f) of OPA.
Finally, this proposed rule clearly authorizes the trustee(s) to
settle claims without completing an assessment. The trustee(s) is
authorized to reach settlement with the RP(s) at any time following a
discharge; neither OPA nor this proposed rule requires that an
assessment procedure of any type be completed. However, the trustee(s)
should be mindful of the great public interest in many discharges of
oil and may provide the public an opportunity to review and comment
upon the settlement terms and/or the restoration component of the DARP
should the assessment not be completed.
Response to Comments
Recoveries
``Assessment Costs''
Comments: Several comments were received regarding the appropriate
definition of ``reasonable costs'' and to the extent that such costs
are recoverable. Many of these comments are addressed in the section
dealing with definitions within the rule. Others indicated that the
trustee(s) could capture many of the administrative costs by simple
bookkeeping, i.e., recording the number of man-hours, travel costs,
etc. Several commenters indicated that the individual study costs
conducted in the context of an assessment should only be recoverable if
the individual study costs are reasonable. Other commenters indicated
their preference for the overall approach, i.e., the total costs of the
assessment are anticipated to be less than the damages.
Response: NOAA agrees that the trustee(s) should document all
administrative costs. The costs of damage assessments are deemed
reasonable if the damage assessment is conducted in accordance with
this proposed rule or if the costs are otherwise reasonable under the
circumstances. However, the trustee(s) is required to conduct only
studies that will provide data directly relating to the purpose of the
assessment, to the extent practicable under the circumstances, and to
conduct those studies in a cost-effective manner. NOAA does not require
the trustee(s) to consider whether individual study costs are
reasonable so long as the trustee(s) meets the requirements specified
in the previous sentence. To determine reasonableness, the trustee(s)
should consider the overall costs of the assessment against the
expected recovery.
Comment: Some commenters requested that the costs of monitoring
during the Assessment Phase be recoverable.
Response: NOAA has specifically included monitoring costs in the
recoverable damages.
Comment: Several commenters suggested that recoverable costs should
include the costs of recovering damages.
Response: NOAA agrees that the costs of ``assessing damages''
includes the costs of recovering those damages.
Comment: Some commenters desired more clarification on recoverable
damages, specifically, whether the rule would allow recovery of funds
in excess of the costs of restoration plus the assessment cost.
Response: The proposed rule allows for the recovery of damages
required by OPA, namely: (1) The cost of restoring, rehabilitating,
replacing, or acquiring the equivalent of, the injured natural
resources and/or services pending restoration; (2) the diminution in
value of those natural resources and/or services pending restoration;
plus (3) the reasonable cost of assessing those damages. The recovery
of those three items is not excess recovery. The trustee(s) is to use
the money to restore, rehabilitate, replace, or acquire the equivalent
of the injured natural resources and/or services and to be reimbursed
for the reasonable costs of conducting the assessment. Any recoveries
that remain after implementing the restoration plan shall be deposited
in the Oil Spill Liability Trust Fund in accordance with section
1006(f) of OPA.
Comment: One commenter indicated that the costs of emergency
restoration are more properly classified as response costs and not
associated with restoration.
Response: NOAA agrees that the appropriate avenue of redress is
through the OSC's response structure, which may consist of simply
having the OSC approve the trustee actions and costs as removal actions
and costs. While these actions/costs are not strictly preassessment
activities, it is likely that such actions/costs will be taken while
the trustee(s) is conducting the preassessment and can be included in
the Preassessment Phase. In circumstances where the trustee(s) takes
emergency restoration to repair or replace habitat or resources, these
are technically restoration costs, but again can be claimed in the
costs of conducting an assessment. NOAA reminds the trustee(s) that
emergency restorations are the exception, not the usual course of
business. NOAA expects fully that close cooperation and coordination
with the response agency(ies) and the RP(s) will greatly alleviate the
need for emergency restoration.
Comment: One commenter noted several disadvantages in simplified
assessments, including the potential overlapping trustee interests in
certain natural resources, damages will not sufficiently reflect the
extent of the actual injury, and the risk that a compensatory
assessment could be transformed into a punitive exercise.
Response: NOAA notes that double recovery is prohibited to the
extent provided by section 1006(d)(3) of OPA. The simplified damage
assessment procedures produce calculations based on statistical
averages and will reasonably reflect the damages of the actual injury
in a timely and economical manner. Finally, NOAA disagrees with the
charge that simplified damage assessments are akin to punitive damages.
The computer models and compensation formulas generate damages based on
average restoration costs and average diminution of value of the
affected natural resources and are thus compensatory as authorized by
OPA.
``Coordination With Legal Counsel''
Comment: Commenters covered the possible range concerning the
appropriate involvement of legal counsel. Some indicated that attorneys
will slow down the assessment process while others indicated that
assessments are complicated legal processes that may involve a variety
of legal issues, including Freedom of Information Act requests and
coordination among federal and state laws, and that attorneys must be
involved in the process from the onset. Most commenters indicated that
a formal process for attorneys need not be identified in the rule. Some
commenters indicated that, since many assessments have been conducted
under the threat of litigation, attorneys have more say than the
scientists in the assessment process. One commenter suggested that
early involvement of attorneys leads to adoption of extreme positions
by both parties and encourages unnecessary and poorly designed studies
aimed at litigation, not restoration.
Response: NOAA has determined that there is no need to specifically
provide a role for either trustee agency counsel or attorneys
representing the RP(s) in the proposed rule. NOAA has attempted to
propose a rule that is scientifically driven, and not specifically
geared to the potential of litigation, even though that potential
certainly looms ever-present. As a practical matter, NOAA encourages
trustee agencies to keep their respective counsels informed of the
assessment and seek their advice in legal matters. It is expected that
the RP(s) will rely upon its attorney(s) for advice and counsel
throughout most assessments.
``Private Causes of Action''
Comment: Some commenters encouraged NOAA to specifically allow the
trustee(s) to recover for private causes of action under OPA. They
reasoned that often it is the government that is the most logical party
to recover for what are arguably ``private'' harms, i.e., increased
prices due to fishery closures, since the consumers would have no
mechanism to individually recover those damages. Another example cited
was recreational users, who would be unlikely to pursue individual
claims.
Response: Section 1002 of OPA provides specifically for damages
recoverable under OPA, including natural resources, real or personal
property, subsistence use, revenues, profits and earning capacity and
public services. However, although OPA states that a natural resource
trustee may seek recovery of damages for injuries to, or loss of use
of, natural resources, OPA gives the right of action for the other
types of damages to the actual users or owners of the property
affected.
``Punitive Damages''
Comment: Some commenters expressed the opinion that recoveries
under OPA should not include punitive damages.
Response: NOAA agrees fully. The proposed rule is designed to
assess compensatory damages for the injury to, and loss of use of
natural resources, their corresponding diminution in value pending
restoration, and the reasonable costs of conducting an assessment.
``Future Damages''
Comment: Some commenters suggested that the damage figure should
include an added amount to pay for cumulative unknown effects that
cannot be determined by the assessment, comparable to the Superfund
provision with respect to damages for unforseen future liability. One
of these commenters suggested that these damages could be used to carry
out additional research, monitoring, etc.
Response: NOAA does not believe that OPA requires damages for
unforeseen future natural resource injuries. Such recoveries may be
speculative in nature. However, for any particular discharge the
trustee(s) and RP(s) may agree, through negotiations, to establish an
escrow account to cover future effects, perhaps with unused sums
reverting back to the RP(s) after a specified amount of time.
``Limits of Liability''
Comment: One commenter stated that liability limits for oil and gas
extractive facilities should hold under OPA, except on cases of proven
gross negligence, willful misconduct, or violation of certain federal
stipulations.
Response: NOAA notes that the commenter is requesting a statutory
change, clearly outside the scope of this rulemaking.
IV. Assessment on the Record
Purpose
Section 1006(c) of OPA provides that the trustee(s) shall ``develop
and implement a plan for the restoration, rehabilitation, replacement,
or acquisition of the equivalent, of the natural resources under their
trusteeship.'' 33 U.S.C. section 2706(c)(1)(C), (c)(2)(B), (c)(3)(B)
and (c)(4)(B). Section 1006(c)(5), 33 U.S.C. section 2706(c)(5),
provides that ``plans shall be developed and implemented under this
section only after adequate public notice, opportunity for a hearing
and consideration of all public comment.'' Thus, Congress intended that
restoration plans be developed by the trustee(s) pursuant to an
administrative process that provides an adequate opportunity for public
participation in the selection of restoration measures. In accordance
with traditional principles of administrative law, NOAA is proposing to
implement these provisions by requiring the trustee(s) to document
development of draft assessment/restoration plans (DARP) in an
administrative record through notice and comment procedures.
The administrative record has four basic purposes. First, it
facilitates selection of restoration, rehabilitation, replacement, or
equivalent acquisition actions by providing a central repository for
scientific data. Second, it documents the relevant factors the
trustee(s) considered in selecting restoration actions. Third, it
facilitates public participation. Fourth, it provides the basis for
judicial review.
The DARP serves to document, for the administrative record, the
most appropriate restoration approach, with its estimated restoration,
rehabilitation, replacement, or equivalent acquisition costs for a
particular discharge. Therefore, the judicial review standard of
``arbitrary, capricious, or otherwise not inconsistent with law'' would
apply to determinations through the development of the restoration
approach. Once the restoration approach is developed, the trustee(s)
then can determine the expected interim lost resource values. It is
anticipated that the calculation of those values would not be included
in the administrative record. This approach is suggested in the
legislative history of OPA, which states:
Calculating the total measure of damages under this section will
ordinarily be dependent upon the development by the trustees of the
appropriate plans for mitigating the injury to those resources. This
is because the estimated cost of implementing the plans will be a
major component of the measure of damages. Therefore, the trustees
should, in sequence, conduct the necessary assessments, develop and
estimate the cost of implementing the appropriate plans, and
calculate the diminution in lost use and other values of the injured
resources pending restoration. At that point, the total liability of
a responsible party under this section can be calculated (Committee
of Conference Report No. 101-653; 101 Cong. 2d Sess. at 109 (Aug. 1,
1990)).
Content and Level of Detail
The administrative record must contain sufficient information to
support judicial review of the assessment. The administrative record
should contain all documents considered by the trustee(s) in selecting
assessment and restoration measures, including documents that support
options the trustee(s) ultimately rejected. Pertinent documents that
are timely submitted by the RP(s) or the public shall be included in
the administrative record.
The administrative record should be limited to final documents when
possible. For example, draft documents that are superseded by final
documents are not considered documents on which the trustee(s)
specifically relies and therefore are not included in the record. Where
no final document is available at the time of selection of assessment/
restoration measures, the draft may be included in the record if the
document contains information not found in other documents in the
record but which is considered by the trustee(s) in selecting a
restoration approach.
Pre-decisional, deliberative internal agency memoranda will
ordinarily not be included in the administrative record. Like draft
documents, however, portions of these documents may be included if they
contain information that is not included in other documents. Documents
relating exclusively to liability will ordinarily not be included in
the administrative record unless they are relied upon in selecting
restoration measures. The trustee(s) may maintain a confidential file
for materials in the administrative record that might be sensitive
(e.g., the U.S. EPA Superfund process allows for Confidential Business
Information to be maintained in a confidential appendix to the
administrative record for a Superfund remedial action). If the
restoration approach is challenged, the judge may review that
confidential information in camera, i.e., in the judge's chambers in a
confidential manner. Scientific data and other information concerning
damages to natural resources, however, may not be subject to a claim of
being Confidential Business Information. Scientific data that fail
appropriate quality assurance/quality control requirements should not
be included in the administrative record except where such data are
relied upon in some manner in selecting restoration measures.
Ordinarily, the record should include documents regarding the
nature of the discharge, preassessment determination, restoration
planning, the draft assessment/restoration plan, public comments,
response to public comments, transcripts of public hearings, if any,
relevant investigation reports, scientific studies, work plans, quality
assurance plans, engineering evaluations, decision documents, and an
index to the documents in the administrative record.
The volume of material compiled for the administrative record
should be consistent with the scope of the assessment/restoration.
Compilation of massive documentation for a minor discharge with limited
restoration measures would not be appropriate.
Certain types of information will be common to all assessments,
regardless of the type of procedure selected. Therefore, each
administrative record will contain: (1) Information considered in the
Preassessment Phase; (2) a copy of the DARP; (3) any comments received
in response to public review of the DARP, with the responses to those
comments; (4) a copy of the demand made to the RP(s), including the
Report of Assessment; and (5) the costs of conducting that assessment.
Other items included in the record will be specific to the particular
type of assessment procedure selected. For a Compensation Formula
assessment, in addition to the common items listed above, the
administrative record should include documentation of the information
requirements for use of the formula and identification of the formula
used. For a Type A assessment using one of the computer models
developed by DOI, the administrative record should include
documentation of the information requirements for the Type A model
listed in 43 CFR part 11, subpart D, and the computer printout of the
application of the Type A model. For an Expedited Damage Assessment
(EDA) or Comprehensive Damage Assessment (CDA) the administrative
record should include all documentation supporting the restoration
determinations required in the EDA or CDA. Determinations in EDA or CDA
may include, but are not limited to: the injury determination/
quantification component and the restoration component (specifically
including the test results of any and all methodologies performed in
these phases).
Post-decisional Documents
Occasionally, the administrative record may require supplementing
after finalization of the DARP. Supplements to the record may be
allowed if: the interested party(ies) did not receive actual or
constructive notice of the DARP and the opportunity to comment on the
plan; the information submitted does not duplicate information already
contained in the administrative record; and the information raises
sufficiently significant issues regarding the scope, effectiveness, or
cost of the plan as to warrant having the trustee(s) reconsider the
plan. If the trustee(s) supplements the administrative record with
documents submitted by the RP(s) or the public, the trustee(s) may also
add to the record other documents pertinent to the matters addressed by
the RP(s) or the public.
Post-decisional documents are generally not part of the
administrative record. However, where these documents result in
modification of the DARP, the administrative record should be
supplemented to include the post-decisional documents. Also, where the
DARP provides for the development of certain components at a later
date, the information or documents used to develop these components
should be added to the administrative record as they become available.
The trustee(s) has the discretion, of course, to modify the plan at
any time. However, the public will have the right to review and comment
upon modifications that are, in the opinion of the trustee(s),
significant.
Availability of the Record
To the extent practicable, the administrative record should be
compiled and made available for review as documents are generated or
received by the trustee(s). NOAA believes that public information is
critical to the credibility of assessments and restoration efforts.
However, the degree of public notice and involvement in the
administrative record will necessarily vary depending on the choice of
damage assessment procedures. NOAA is proposing that the administrative
record be open for public review and comment concurrently with the
DARP. The availability and review of the administrative record may also
be arranged in prespill planning conducted by the trustee(s).
Judicial Review
Under the Administrative Procedure Act, 5 U.S.C. 706(2)(A), review
of selection of restoration measures would be conducted on the
administrative record. Review on the record would address several major
concerns expressed by Congress in passing OPA. First, Congress mandated
public participation in restoration planning. Section 1006(c)(5) of OPA
requires the development and implementation of the restoration plan
``only after adequate public notice, opportunity for a [public]
hearing, and consideration of all public comment.'' A trial de novo
would circumvent public participation in the selection and
implementation of the restoration plan by allowing the litigants and
the court to make the decision as to the type of restoration approach.
In interpreting similar Congressional intent with respect to the
selection of remedial action under CERCLA, courts have held that a
trial de novo of selection of a response action is inconsistent with
meaningful public involvement in selection of remedies for hazardous
waste sites. A discussion of these cases was provided in Appendix III
of the ANPRM of March 13, 1992 (57 FR 8964, at 8987). Inherent in these
decisions is the recognition that the general public does not have the
resources or the procedural mechanisms to protect its interests in the
courtroom.
Further, a trial de novo of assessment/restoration measures creates
incentives for parties to withhold scientific data for use at trial.
One of the most significant criticisms of the EXXON VALDEZ case noted
by commenters was the unavailability of scientific data produced by the
parties to the litigation. By contrast, a public administrative process
should create the incentive to disclose scientific data. The government
will be required to publicly disclose its scientific data and
conclusions in the administrative record developed in connection with
the DARP. Other parties will be required to publicly disclose their
scientific data and conclusions in connection with the administrative
development of the DARP or risk waiving their objections to the plan
during judicial review.
Second, record review is necessary to carry out the Congressional
mandate that the trustee(s), as the resource manager(s) and expert(s),
select assessment/restoration measures. NOAA's interpretation of OPA
indicates that Congress intended the Restoration Plan be developed and
implemented by the trustee(s) pursuant to an administrative process,
not by a courtroom battle of experts. Adequate evaluation of the
complex scientific issues involved in assessment/restoration is more
likely to result from a public administrative process conducted by
agencies with specialized scientific expertise.
Finally, Congress emphasized that assessment of damages be
conducted at ``reasonable'' costs. By requiring the various parties
involved in an assessment to submit their findings to a central
repository, much duplicative study can be avoided. Limiting the review
of the assessment/restoration to the administrative record will greatly
reduce the transaction costs.
Administrative Record
Response to Comments
``General''
Comment: A majority of the commenters who spoke to the issue of the
administrative record and judicial review ``on the record'' supported
the concept. Several commenters noted that general administrative law
principles and case law prior to the Superfund reauthorization of 1986
supported record review of expert agency decisions on injury,
restoration, and economic assessments. One commenter explicitly stated
that the injury determination, restoration strategies, and economic
damage amount would receive both the rebuttable presumption and the
deferential standard of judicial review. Some commenters referred to
OPA's reference to the rebuttable presumption's use in ``any
administrative . . . proceeding,'' as well as OPA's provisions for
claims against the Fund in an administrative proceeding, as support for
NOAA's creation of an administrative process that would be granted
record review. Other commenters, however, objected to NOAA's attempt to
allow a standard of review that these commenters perceived to be
inconsistent with the rebuttable presumption. Finally, some commenters
stated that assessment studies and restoration planning within the
context of an assessment should not be made public unless record review
were granted.
Response: NOAA notes that the administrative record provisions in
the proposed rule are intended to implement several important policy
concerns expressed by Congress in OPA. NOAA has considered
administrative law principles and various comparable policies found in
CERCLA to be relevant to natural resource damage assessment process in
several areas. In both CERCLA and OPA, Congress has reflected the
public's concern over expeditious recovery of resources injured by
pollution. Further, in OPA, Congress has explicitly provided that
restoration measures be selected by the natural resource trustee(s)
through notice and comment procedures. Therefore, NOAA feels that there
is statutory authority to establish review on the record. The
administrative record provisions of this proposed rule are intended to
create an open assessment/restoration process to allow an objective
evaluation of how to restore or replace resources injured by discharges
of oil. Whether these provisions would result in ``record review'' is
ultimately the decision of the courts. However, NOAA feels that record
review is essential for the type of expeditious, fair assessments
called for by OPA. As discussed earlier in this preamble, judicial
review on the record would apply to the entire assessment process with
the exception of the determination of the compensable value component
of damages. Finally, NOAA points out that the ``rebuttable
presumption'' is not a standard of review.
``Advantages''
Comment: Many of the commenters pointed out that an administrative
record would avoid the costs associated with a protracted trial de novo
and result in a more timely restoration of the affected resources. Many
of these commenters also noted that an administrative record of an
assessment would allow for the availability of scientific information
on the effects of oil and the efficacy of various cleanup strategies.
Others pointed out that this process would, in effect, allow for peer
review of assessments. Quite a few commenters noted that limiting
judicial review to the administrative record of the assessment would
facilitate the Congressional goal that the agency, as the organization
with the expertise, undertake the assessment as well as the
restoration. Some commenters noted that creating an administrative
record would ensure a more fair and objective process by encouraging
participation by the public and the RP(s). One of these commenters
pointed out that having such an open process would avoid the public
distrust that results from secrecy. Another commenter noted that an
``open record'' would foster a more cooperative process that could
avoid having litigators shield assessment studies and having scientists
conduct unnecessary research. Finally, a few commenters were pleased to
see an assessment/restoration process that is similar to the Remedial
Investigation/Feasibility Study process in Superfund with which so many
agencies are familiar.
Response: NOAA agrees with the advantages of an administrative
record process outlined by these commenters. In particular, creating an
open process that facilitates access to the science in the restoration
process is an important advantage. An open process will also allow
consideration of a wider range of views. Finally, NOAA relied upon,
with some modification, the NCP's administrative record provisions
since those provisions have already undergone extensive rulemaking
development and are somewhat familiar to most trustee agencies.
``Disadvantages''
Comment: Some commenters stated that an administrative record
requirement would result in a slower and more costly assessment process
and could seriously prejudice the ability of the trustee(s) to
negotiate a settlement. One of these commenters stated that the
requirement could overwhelm the ability of the trustee(s) to conduct an
effective assessment. Another commenter noted that such an open record
may allow parties to influence the results of the assessment and skew
the economic data gathered. Some commenters noted that outside
information submitted to the record is strictly advisory in nature, and
not controlling upon the trustee(s). Yet another commenter warned that
a court could decide to conduct a trial de novo anyway, which could
make the trustee(s) vulnerable. Finally, one of these commenters noted
that the RP(s) could totally disrupt the process.
Response: NOAA does not intend an administrative record requirement
that would add to the time and/or expense of a damage assessment. The
preamble discusses the requirement that the administrative record be
tailored to the scope of the assessment. The fact that materials
submitted ``for the record'' would be intended to influence the
assessment in a particular way is inherent in an open record. However,
the trustee(s) is given responsibility to manage and consider the
record in a manner that is consistent with the reasonable cost
requirement of the proposed rule, using best professional judgment.
With respect to the possibility that the courts might not uphold record
review for restoration, NOAA believes that this is unlikely, given the
statutory language. Because lack of record review would undercut a
number of the policies underlying the use of an administrative process
for selection of restoration measures, NOAA would review the process as
a whole if record review were not upheld by the courts.
Comment: Several commenters expressed concern regarding the
involvement of the RP(s) in the administrative record. One of these
commenters noted that, since the trustee(s) compiles the record, the
RP(s) has no incentive to disclose information that the trustee(s)
might decide to exclude from the record. Another commenter stated that
due process for the RP would require judicial review of the findings
and conclusions of the trustee(s), particularly in a tort type action.
Response: NOAA notes that under general principles of
administrative law, the RP(s) will be entitled to submit relevant
material to the administrative record if timely submitted. The
reviewing court will examine the documentation of the assessment/
restoration process for any significant omissions.
``Scope''
Comment: Several commenters spoke to the issue of the scope of the
administrative record of assessment. Some of these commenters stated
that the administrative record should include all data and information
gathered for the assessment. One commenter pointed out, however, that
confidential information gathered by the RP(s) for use in litigation
should not be included. Other commenters also noted that information
pertaining to liability, that may be litigated as a separate issue,
would not go into the record.
Response: NOAA notes that, with few exceptions, all data and
information considered by the trustee(s) in selecting restoration
measures would be contained in the record. Also, participants in an
assessment must recognize that any document that is put into the record
is in fact ``public.'' The RP(s) is free to decide whether to submit
information for the record, at the risk that, if he does not do so, the
information may not be considered when the court reviews the
assessment/restoration plan.
Comment: Other commenters noted specific questions regarding the
administrative record. One asked if (1) any documents could remain
confidential; (2) all data required by the trustee(s) must be given to
the RP(s) and the public; (3) chain of custody procedures would apply;
and (4) deliberative documents would be subject to FOIA. Another asked
that NOAA clearly identify the kinds of documents to be included in the
record, the requirements for public access and comment, and the type of
scientific basis for decisionmaking. Finally, one commenter suggested
that additions to the record after closure of the public comment period
should be ca
FR Doc. 94-225 Natural Resource Damage Assessments
refully and narrowly defined.
Response: NOAA has noted the requests for specific information on
the types of documents to be included in an administrative record. The
general discussion in the preamble above lists examples of documents
that would be included or excluded in an administrative record.
Generally, those documents releasable under FOIA would be included in
the administrative record. Those documents not releasable under FOIA
would be excluded. The preamble and proposed rule provide guidance as
to what types of documents would be allowed into the record after the
public review period is closed.
``Components''
Comment: Some commenters stated that all documents relied upon by
the trustee(s) should be placed in the administrative record. One
commenter provided the following as examples of what should be included
in the administrative record: (1) Scientific data collected, generated,
and analyzed during the assessment; (2) the determination of scope of
injury; (3) comments and data provided by the public and the RP(s), and
the consideration of that information by the trustee(s); and (4)
relevant facts relied on in selecting the restoration plans and
calculating the damages.
Response: NOAA agrees that all documents and data forming the basis
for the selection of restoration measures, including these in each
phase of the assessment leading up to the development of a restoration
approach should be placed in administrative record. Additional data and
comments that are timely submitted by the RP(s) and the public should
also be included in an administrative record. Guidance for
documentation is provided in this preamble.
``Additional Components''
Comment: One commenter noted that its state open records law would
apply to the administrative record if maintained by a state trustee and
that the record requirements are broader than those suggested by NOAA.
The commenter noted that the state law requires that the following
types of documents be made available for public review: (1) Draft
documents; (2) pre-decisional, deliberative internal agency memoranda;
and (3) scientific data generated by the state or a contractor and in
the possession of the state regardless of whether it fails quality
assurance. The commenter noted, however, that documents relating
exclusively to liability, if prepared by or for an attorney under
client privilege, can be excluded from public view.
Response: NOAA recognizes that some state laws may require broader
availability of documents than what is described in this proposed rule
for the administrative record. If a state has additional requirements
for public availability of documents beyond those outlined in this
proposed rule, the state requirements may apply to state trustees.
NOAA's proposed rule describes the minimum requirements for public
review for the various types of assessment procedures. It should also
be noted that because record review of restoration measures selected by
federal trustees alone or jointly with state trustees is premised upon
the requirements of the federal Administrative Procedure Act, selection
of restoration measures by state trustees alone may be subject to
different principles of judicial review.
``Conditions''
Comment: Several commenters stated that their agreement with a
record review standard was conditional upon having the review available
for the assessment and restoration selection/cost decisions, but not
for the calculation of economic damages. These commenters stated that
the economics determination should then be entitled to the same
protection as other work product until trial. One commenter noted that
the legislative history of CERCLA (relevant to OPA) makes it clear that
Congress, by stressing the restitutionary nature of natural resource
damages, intended at least the selection of restoration plans to be
reviewed by the court on an administrative record.
Response: NOAA believes that the statutory language clearly
contemplates record review of selection of restoration measures. The
availability of record review for all aspects of the damage assessment
is less clear. The proposed rule provides for an administrative record
process only for those aspects of the assessment leading to selection
of restoration measures, including the estimate of the costs of such
measures. NOAA solicits comment on whether the administrative record
provisions should be extended in the final rule to other aspects of the
damage assessment.
Comment: Other commenters agreed with the open record so long as
the rule ensured that the RP would be given a joint and meaningful role
in the assessment. These commenters stated that the integration of the
open record with the later proposed ``jointly conducted, phased
assessments'' with responsible parties, would be essential.
Response: NOAA agrees that the RP(s) would play a major role in the
development of the administrative record for the assessment/restoration
process. As noted in the section of this preamble on cooperative
assessments, NOAA strongly encourages joint work with the RP(s). Also,
the administrative record process will work more smoothly where there
is a joint assessment in progress. However, there will undoubtedly be
instances where such joint efforts will not be possible. In those
cases, the administrative record is even more important, because it
gives both the RP(s) and the public the opportunity to provide material
for the administrative record, and it will require the trustee(s) to
address that material if relevant.
``Time of Review''
Comment: Another commenter stated that the record of assessment
actions should be final only after the trustee(s) has determined
damages and selected a restoration approach. Some commenters stated
that NOAA should consider the applicability of the concept of
``preenforcement review,'' which would allow selection, possibly
implementation, of the Restoration Plan without first having to prove
its validity in court.
Response: NOAA notes in its general discussion above that review on
the record would generally take place in an action to obtain damages.
Prior to this time, there would be no final agency action subject to
review.
``Levels of Documentation Required''
Comment: One commenter noted that, even where there is an expedited
damage assessment conducted, an administrative record should be
compiled to provide at least some information for public review.
Response: NOAA notes that, in the general discussion of detail of
an administrative record, documentation requirements would have to be
tailored to the scope of the case. In all cases other than emergency
restoration actions, however, final restoration measures would be
selected only after public review and comment.
``Support--Legal Arguments''
Comment: Several commenters noted that natural resource damages are
not measured by the traditional common law methods. These commenters
pointed out that these assessments involve highly technical, scientific
findings in which courts have traditionally treated the agency's
determination with great deference. A few of these commenters suggested
that the federal courts have neither the time nor the expertise to
decide these scientific issues. Therefore, the commenters conclude that
judicial review of the assessment/restoration plan should be conducted
on the administrative record, applying an arbitrary and capricious
standard.
Response: NOAA agrees that courts generally defer to agency
expertise in cases involving highly technical or scientific content.
For this reason, NOAA agrees that review of restoration measures, which
involve highly technical judgments, should be on the record.
Comment: Some commenters spoke to the issue of consistency with the
provisions for claiming natural resource damages against the Fund.
These commenters pointed out that, in presenting such a claim against
the Fund, the trustee is entitled to a rebuttable presumption of
correctness. The United States is then subrogated to the rights of the
trustee in pursuing the claim against the RPs. It follows that the
documented determination of injury, selection of restoration plans, and
calculation of the costs to assess, restore, and compensate for lost
use/nonuse value by the trustee is the only available evidentiary basis
on which the United States can proceed in court on behalf of the Fund,
to recover the damages paid out to the trustee(s) from that Fund. The
commenters then argue that the same standard should apply to
assessments reviewed by courts.
Response: NOAA agrees that consistency in the implementation of a
statute is a desirable goal. If there were two standards for
determining compensation for injuries to natural resources under OPA,
expensive and confusing assessments would result. Accordingly, the same
standard of review would apply to restoration in actions by the OPA
fund as to actions by the trustee(s).
Comment: Other commenters noted that, where the right to sue for
damages to private property existed at common law through a tort
action, the public's right to sue for restitutionary money to make an
injured environment whole did not exist. These commenters pointed out
that all components of natural resource ``damages'' (as defined under
OPA) are restitutionary in nature including quantification of lost use/
nonuse values. The commenters suggested that, when Congress creates a
public right by statute that did not exist at common law (such as the
ability to seek money to make whole an environment injured by an oil
discharge), it may entrust the determination of such public rights to
an administrative body. Therefore, the commenters argued that the right
to trial by jury for common law damages would not present an obstacle
to record review of a damage assessment.
Response: NOAA notes that Congress, in the legislative history of
CERCLA and OPA, pointed out problems with pre-CERCLA common law actions
for damages to public resources. This concern resulted in the set of
environmental statutes specifically allowing recovery by a public
government agency for damages as compensation for injuries to natural
resources. Because natural resource damage claims are essentially
restitutionary and because Congress has required that trustees (rather
than courts in the first instance) select a restoration approach and
compute damages to natural resources, NOAA agrees that the right to a
jury trial would not apply to damage actions under OPA. Further, most
OPA actions are likely to be brought in the courts' admiralty
jurisdiction, where there is no right to jury trial.
Comment: Several commenters noted that NOAA has the authority to
declare that judicial review of damage assessments would be on the
administrative record since there was no explicit statement as to the
standard of review in OPA. These commenters pointed out that, where the
legislative delegation to an agency on a particular question is
implicit rather than explicit, a court will generally defer to a
reasonable interpretation made by the agency.
Response: NOAA agrees that Congress' directions to NOAA were not
explicit as to the type of judicial review to be accorded to damage
assessments. However, the legislative history does note that this
proposed rule is to create a system of damage assessment that is
expeditious and fair. The report of the Committee of Conference states
that these regulations ``should be designed to simplify the trustees'
task of assessing and recovering the full measure of damages resulting
from an incident.'' See H. Con. Rept. No. 653, 101st. Cong., 2d Sess.
at 109 (1990). NOAA feels that providing for record review of damage
assessments is necessary to achieve this goal. Further, while the issue
of the standard of judicial review will ultimately be decided by the
courts, NOAA believes that, as the agency charged with implementing the
natural resource damage provisions of OPA, its views should be entitled
to some deference.
``Against--Legal Arguments''
Comment: Several commenters stated that the RP has the legal right
to a jury trial in natural resource damage assessment disputes as
guaranteed by the United States Constitution. The commenters pointed
out that a damage assessment is not a rulemaking under section 553 of
the Administrative Procedure Act, but is similar to an adversarial
administrative activity that will often result in litigation. The
commenters argued that every CERCLA natural resource damage case that
has addressed the issue has required a jury trial for these actions at
law. These commenters stated that issues related to the selection of
assessment/restoration plans must be decided by a trial court.
Response: As stated in the above discussion, the due process rights
of the RP(s) will not be sacrificed in the administrative record
process. While a few district courts have held that there is a right to
jury trial for the lost compensable value aspects of CERCLA natural
resource damage cases, at least one court has held that there is no
right to jury trial for the restoration aspects of natural resource
damage cases. Further, even if there is a right to jury trial, NOAA
does not perceive a conflict between a non-jury record review of
restoration measures and cost estimates under the ``arbitrary,
capricious, or otherwise not in accordance with law'' standard, and a
jury trial on other issues.
Comment: Some of these commenters spoke to the issue of the
rebuttable presumption in relation to record review. Some commenters
suggested that a court should review the choice of restoration
alternatives by the trustee(s) on an ``arbitrary and capricious''
standard, i.e., the trustee(s) is presumed to be correct unless it can
be proven that the trustee(s) acted in an arbitrary or capricious
manner. Other commenters argued that Congress would not have offered
the favorable rebuttable presumption as a standard of review if the
trustees had any underlying entitlement to the ``arbitrary and
capricious'' standard. The commenters contended that Congress was
attempting to offer the trustee(s) the slightly more favorable review
standard of a ``rebuttable presumption'' as an incentive for trustees
to follow the regulations; failure by the trustee(s) to follow
regulations apparently results in their having to prove their case, by
a preponderance of the evidence, on the de novo review standard.
Reconciling the congressional provision of a ``rebuttable presumption''
with the Administrative Procedure Act's arbitrary and capricious
standard of judicial review would require that, to rebut the
presumption, the RP would have to point to clear and convincing
evidence in the aforementioned administrative record demonstrating that
the injury determination, restoration selection, or monetary
quantification by the trustee(s) was arbitrary and capricious.
Response: The selection of restoration alternatives by the
trustee(s) for a particular incident will either be identified during
prespill planning as part of a Regional Restoration Plan (see the
discussion of Sec. 990.16) or in an incident-specific restoration plan
developed for that incident. NOAA agrees that the ``arbitrary,
capricious, or otherwise not in accordance with law'' standard of
judicial review for that choice is appropriate. NOAA points out that
the rebuttable presumption is a rule concerning level of evidence, not
a standard of review. Therefore, the statutory provision for a
rebuttable presumption for the damage assessment as a whole does not
preclude the development of an administrative record for the assessment
through restoration components of a damage assessment. There is no
reason why different aspects of the assessment cannot be subject to
different standards of review, which is precisely what the language of
OPA appears to require.
Comment: Several commenters stated that NOAA had exceeded its
statutory authority in declaring record review of assessments. These
commenters contended that Congress was not silent on the issue of the
standard of review. These commenters contended that Congress did not
delegate to NOAA the authority to determine the standard of review a
court will apply when considering a trustee's natural resource damage
claim filed before the court. These commenters pointed out that, in
section 1006(e)(2) of OPA, Congress specified that: ``Any determination
or assessment of damages to natural resources for the purposes of this
Act made * * * by a * * * trustee in accordance with the regulations *
* * shall have the force and effect of a rebuttable presumption. * *
*'' In contrast, the commenters pointed out that OPA's directive to
NOAA for promulgating regulations is limited to the assessment of
damages. OPA contains several provisions that address the procedure for
the trustee(s) to file a claim(s) against the RP(s). These commenters
stated that the issue of the standard of judicial review is determined
by the Congress and courts, not by regulation, and that NOAA should not
attempt to preempt judicial resolution of that issue.
Response: NOAA agrees that the ultimate decision as to the standard
of review for a damage assessment is for the courts. Nevertheless, NOAA
believes that its mandate to develop an assessment process that is both
fair and expeditious requires it to provide its views on the
appropriate standard of review, since this has crucial implications for
the assessment process. As noted above, administrative record review is
contemplated by OPA's requirement for selection of restoration measures
based on notice and comment procedures. Further, this position is
supported by the courts' consistent interpretation of CERCLA's
provisions with respect to lead agency selection of a response action
for a Superfund site. While the issue of the appropriate standard of
review is ultimately for the courts, NOAA's views on the interpretation
of the statute should be entitled to some deference.
Comment: Some commenters noted that NOAA might wish to explore the
possibility that non-RP challenges to an assessment/restoration plan
would be subjected to more limited judicial review.
Response: Provided that the non-RP has standing and right to sue,
NOAA notes that, to ensure fairness in implementation of OPA, the same
standard of review should apply to all who seek judicial review of
trustee's(s') actions.
``Miscellaneous''
Comment: One commenter noted that, while the rule might provide
that changes in plans or decisions predicated upon public comments
should not be available for critical use against an assessment in
administrative or court proceedings, a trustee who changes a decision
or plan because of public comment should be able to defend that change
easily on facts and reasoning, and thus will not feel a constraint to
defend a wrong initial determination.
Response: NOAA agrees that a trustee who changes initial findings
or plans based upon later information gained through public comment
would simply document that change in the administrative record. One of
the crucial advantages of an administrative process is the incentive
created for disclosure and public participation. The trustee(s) will be
required to disclose information relevant to selection of restoration
measures in a public record, and the trustee(s) will be required to
fairly evaluate public and RP comments in selecting restoration
measures. Based on NOAA's experience in numerous cases, it expects that
public comment will be seriously considered by the trustee(s) and in
some cases may lead to significant modifications of proposed
restoration measures.
Comment: One commenter stated that NOAA should seek to ensure that
scientific studies are conducted openly, with full and rigorous
scientific peer interaction and review, to avoid a trustee expending
large sums of money non-competitively on poor quality science that will
not withstand scientific scrutiny.
Response: NOAA believes that an administrative process is the best
method of ensuring thorough review of restoration by both the
scientific community and public.
V. Prespill Planning
General
In many discharges, multiple trustees have been able to reach
agreement on coordinating assessment and restoration activities. In
light of that experience, the proposed rule strongly encourages
federal, state, tribal and foreign trustees to develop prespill plans
at the local area or regional level. In a corresponding effort, these
plans might be implemented through a general Memorandum of
Understanding (MOU) among trustees on a state level for the state
trustee(s), and local area or regional basis for the rest of the
trustee(s).
This proposed rule includes, in Appendix A, a sample MOU that has
been reviewed in an earlier Notice, that could establish a coordination
framework for trustees for prespill planning. Trustees could develop
MOUs with provisions for specific areas such as bays, ports, waterways,
or areas of special sensitivity concerns.
To the extent practicable, it is strongly encouraged that this
planning process mirror the areas covered by Area and/or Regional
Contingency Plans authorized by section 4204(a) of OPA under the NCP or
could be on a state-by-state basis. The trustees should establish
working groups at the regional or local area level to undertake these
activities.
Prespill Plans
Without regulating the exact contents of the plans, the proposed
rule notes that the plans should identify the responsibilities of the
trustees, and other willing participants where appropriate, in the
event of a discharge of oil covered by OPA. Suggested prespill planning
activities include, but are not limited to, the following areas:
1. Develop a natural resource damage assessment management and
technical team. The natural resource damage assessment team is
responsible for planning and conducting damage assessments in the event
of a discharge of oil. The size of the team should be a function of the
scope and complexity of the assessment, and may include a natural
resource trustee agency coordinator, resource biologist, environmental
(petroleum) chemist, resource economist, restoration expert, QA
specialist, data manager/sample custodian, statistician, and resource
attorney. It is not always necessary to have a different person for
each role, but experience has shown that each role is a full-time
commitment, especially for highly significant discharges. Each person
on the team, to the extent relevant to his or her own discipline,
should have a working knowledge of natural resource damage assessment
regulations and requirements, and be ready to begin preassessment
activities immediately upon notification of a discharge. The team
should not be ad hoc; members should be knowledgeable in natural
resource damage assessment issues and have established working
relationships with each other, the co-trustees, and the response
community.
2. Identify outside experts. Since discharges of oil are sudden and
episodic, it is not always possible to maintain sufficient staff to
conduct all natural resource damage assessment activities. Depending on
the discharge conditions, the trustees will need different experts on
the team to assist in designing and conducting of studies for different
natural resources and/or services. The trustees should identify the
types of natural resource damage assessment expertise needed if there
is a discharge in their area, and prepare a list of potential contacts
available to provide that expertise. Experts without conflicts of
interest should be used as an independent peer review group for
potential natural resource damage assessment activities.
3. Identify support services. Certain support services, such as
analytical and testing laboratories capable of performing the
specialized hydrocarbon chemistry, toxicity testing, and histopathology
needed for a discharge of oil natural resource damage assessment,
should be identified ahead of time. Backup services should also be
identified since the needs of both response and damage assessment
activities can exceed even regional capabilities. Support activities
conducted at the discharge site or potentially affecting any response
activities must be coordinated with the OSC or designee. Other types of
support services that may be needed include:
a. Field support for reconnaissance surveys by aircraft or vessel;
b. Monitoring logistics for sample collection, handling,
preservation, storage, and transport;
c. Data management support;
d. Human health and safety support; and
e. Natural resource damage assessment training support.
4. Collect information on natural resources and/or services
potentially affected by oil discharges along high risk areas. Area
Planning Committees are responsible for the identification of sensitive
natural resources and/or services in their areas, and development of
protection priorities and strategies for these resources and/or
services. The trustee(s) is encouraged to serve on these committees to
ensure incorporation of all special concerns and considerations, and
ensure consistency with the natural resource damage assessment Prespill
Plans. Examples of issues include the seasonality of natural resources,
along with unique protection approach questions, the overall
effectiveness of cleanup countermeasures and effect versus natural
recoveries, etc. These types of response issues are addressed in the
Fish and Wildlife and Sensitive Environments Annexes to Area
Contingency Plans (ACP). Besides having an opportunity to assist in
creating and updating the ACPs, the trustee(s) is also given an
opportunity to comment when those ACPs are submitted to the Regional
Response Team (RRT) for review. The trustee(s) conducting damage
assessment should coordinate with response personnel on issues
affecting natural resources and/or services; clarifying the anticipated
activities and roles of each during the discharge, and identifying the
data needs of the trustee(s) that could be implemented through joint
activities. Strategies for data sharing among the trustees, response
agencies, and possibly the RPs, should be developed. This is
particularly important since damage assessment data are often not made
immediately available to the public. The trustee(s) is encouraged to
participate in training and coordination activities of the response
community, such as drills for the discharge of oil.
5. Lead Administrative Trustee (LAT). Whether planned in advance
of a discharge or not, when assessments involve more than one trustee,
trustees should select a LAT, although the proposed rule does not
require that a LAT must be selected. The selection of a LAT should be
by consensus and can be based on such factors as the trustee with a
majority of natural resources at risk or the ability of a particular
trustee agency to provide administrative support. While the federal
trustees are required to select a LAT under E.O. 12777, 56 FR 54757
(October 22, 1991), this proposed rule does not require that the LAT be
a federal agency when non-federal trustees are involved. In such cases,
the federal trustees will still select a federal LAT, who will
coordinate federal efforts with the LAT. Where appropriate, trustees
may designate Co-LATs, consisting of a federal LAT and the state,
tribal, or foreign trustee(s). It is also possible that, under certain
circumstances, it might be appropriate for the LAT to be a single non-
federal agency.
The LAT will not have veto or arbitration authority over the other
trustees, but should be responsible for activities such as: scheduling
meetings of the trustee working group or committee, preparing agendas,
procuring space, etc.; acting as a central contact point for damage
assessment trustee agencies involved in the incident, liaison with the
appropriate OSC or designee; coordinating preassessment data gathering
and other activities; and establishing and maintaining the
administrative record, as well as other records, for the trustees.
6. Identify sources of information for background data. The
trustees should develop lists or databases on the types of background
information currently collected that may be of potential use in a
natural resource damage assessment. If practicable, the trustees should
identify and prioritize the most important information, and encourage
or support the collection of such information in a cost-effective
manner. Types of information considered potentially important include:
petroleum hydrocarbon contamination in indicator organisms and exposure
pathways; species census and inventory, baseline data on species
populations, recreational use statistics, and economic values for
selected natural resources and/or services. Familiarity with the types
of baseline data available will allow the trustees to formulate better
data collection strategies. The trustees should also collect
information on successful restoration efforts for trust resources and/
or services, and needed restoration efforts in their region.
7. Design a general approach and develop protocols for data
collection and analysis. The trustees may want to develop scenarios for
the types of natural resources and/or services that may be affected by
a discharge of oil, and plan for an appropriate study design, including
data collection and analysis protocols. Where practicable, protocols
should be similar to those used in baseline studies to ensure
comparability with the incident-specific assessment. The trustees
should prepare standard protocols in a format that allows easy
customization for a specific discharge. With prespill planning, initial
damage assessment efforts may be better-implemented and generate more
useful data. The trustees should prepare field kits for collection of
samples and measurements in the early or emergency stages of a
discharge.
8. Establish a centralized data management system for natural
resource damage assessment data. There is a pressing need to have a
data management plan in place that provides efficient access to
collected data following a discharge of oil. Typical natural resource
damage assessment studies are highly multidisciplinary, involving
experts from many different organizations, who need access to data
collected by various groups. For example, wetlands specialists studying
injury to oiled marshes should use the same degree-of-oiling
classifications as mapped by shoreline survey teams. The trustees are
encouraged to develop a centralized data management system to support
natural resource damage assessment needs. At a minimum, the plan should
address the type and volume of data, uses of the data, existing data
management capabilities, types of analyses conducted, QA needs,
reporting requirements, and access to data. The data management plan
should also include provisions for distribution of updates to natural
resource damage assessment team members on a timely basis.
Regional Restoration Plans
Restoration plans have typically been directed towards a single
resource (i.e., species or habitat type). In recent years for example,
projects have focused on the preservation of rare and endangered
species. The resource by resource management approach tends toward a
never ending cycle of salvage operations. There is now a concern for
maintaining and conserving genetic diversity. This goal requires that
healthy, viable populations be maintained in the environment in which
they co-evolved. The essential argument is that the community is the
level of hierarchy needed to maintain the level of ecological
diversity, ensuring the conservation of threatened/endangered species,
gene pools, species diversity, natural community interactions, and
known and unknown ecosystem species and processes.
Since human values arise from the attributes that are naturally
scaled to the region, it makes sense that such a regional perspective
be considered. Regional evaluation can be addressed through the
consideration of five technical issues; (1) spatial boundaries (i.e.,
size of the study required to encompass the range of resources of
concern); (2) time scale (i.e., timeframe or lifecycle of the
resources); (3) ecological complexity (i.e., identification of
ecosystem components based on habitat structure and/or function); (4)
ecosystem pattern (i.e., patch size, continuity and contiguity); and
(5) increment of the environmental change (i.e., setting goals and
limits to restore the resource base). This follows from the proposed
approach by Gosselink, J.G. and L.C. Lee, CUMULATIVE IMPACT ASSESSMENT
IN BOTTOMLAND HARDWOOD FORESTS; Center for Wetland Resources, Louisiana
State University, Baton Rouge; LSU-CEI-86-09 (1987). The area of
concern should be evaluated relative to its importance and significance
to the regional resource base as well as the special status of the
area's components.
Where appropriate, the trustee(s) can develop, as part of the
prespill planning, such Regional Restoration Plans. These plans could
be developed on geographical or habitat basis to allow the recovery of
the system covered by the plan. The trustee(s) may develop these plans
as new efforts, but are encouraged to use existing plans that can be
modified to meet the needs of this proposed rule. Examples of
preexisting plans are Coastal Zone Management or the National Estuary
Program Plans. To qualify as an appropriate Regional Restoration Plan
pursuant to this proposed rule, a plan would have to be developed, or
an existing plan modified, through a public review and comment process
consistent with the restoration planning process described in subpart G
of this proposed rule. Recoveries from damage assessments pursuant to
this proposed rule may be applied to these plans, as provided in
Sec. 990.84(b) of this proposed rule. Coordination with Response
Agencies: OPA covers inland navigable waters as well as coastal areas.
From a federal perspective, as a general rule, the U.S. Coast Guard
directs response activities in the coastal zone including the Great
Lakes. The U.S. EPA directs response activities in the inland zone. See
NCP, 55 FR 8815, 8816 (March 8, 1990). State response agencies may also
direct response activities.
Effective coordination with the response activities necessitates
that coordination procedures be established prior to a discharge. This
proposed rule strongly encourages the trustee(s) to plan and coordinate
damage assessment activities prior to a discharge. Similarly, the
trustee(s) is encouraged to either develop prespill agreements with the
OSC, participate in the OSC's Area Committee planning meeting, and/or
attempt to include the OSC in general prespill planning. Agreements or
joint plans should address, but are not limited to, the following
issues: establishment of communication roles; identification of a
damage assessment trustee and OSC contact; human health and safety
requirements; development of joint activities, i.e., sampling, spill
drills; identification of natural resources of particular concern; and
information and data sharing. These issues can be facilitated by the
NOAA Scientific Support Coordinator in the U.S. Coast Guard District.
Such coordination has already effectively taken place in the
development of the Fish and Wildlife and Sensitive Environments Annexes
to the ACPs being developed as part of the NCP. Section 311(d)(2)(M) of
the Clean Water Act (CWA), as amended by section 4201(b) of OPA,
requires the development of a fish and wildlife response plan, and
section 311(j)(4)(B)(i) and (ii) of the CWA, as added by section
4202(a) of OPA, calls for preplanning in area committees to include
concerns for sensitive environmental areas as well as fisheries and
wildlife.
The trustee(s) recognizes that the OSC should not be unduly
hindered by the trustee's(s') requests for use of equipment and/or
information. Conversely, response agencies also recognize the
trustee(s) as a potential source of information for damage assessment
activities.
Coordination With the Public
OPA requires public notice, opportunity for a hearing and
consideration of all public comments prior to implementation of the
restoration plan. NOAA, however, does not believe that public
involvement should always be limited to the restoration plan alone.
NOAA is of the opinion that because the natural resource damage
assessment process will be enhanced by public comment, the trustee(s)
may provide for public review of the natural resource damage assessment
component in addition to the restoration plan. The proposed rule,
therefore, urges the trustee(s) to provide the public with an
opportunity to review and comment on prespill plans discussed elsewhere
in this preamble as well as to comment on the natural resource damage
Assessment Restoration Plan. Additional public involvement, i.e.,
oversight or advisory committees, open trustee meetings, etc., will be
at the option of the trustee(s). The scope of public participation in
meetings would be advisory, not as voting membership. NOAA is also
ensuring public involvement and information through the requirement for
an administrative record for assessments.
Response to Comments
``Coordination--General''
Comment: All of the commenters who spoke to the issue of
coordinated assessments agreed that all natural resource trustees
should coordinate their damage assessment activities among themselves
and with other interested parties. Many of these commenters supported
NOAA's efforts to encourage prespill planning to accomplish this
coordination. One commenter stated that there should also be strong
incentives for trustee coordination, the implementation of MOUs, and
the development of local and regional assessment protocols. Other
commenters urged NOAA to develop detailed guidance as to how
coordination might occur and explicit details on how prespill plans
would be formulated and implemented by an MOU.
Response: NOAA agrees that coordination among parties involved with
discharges of oil is crucial. NOAA cannot offer incentives for such
coordination within this rulemaking, but notes that the increased
efficiency and chances of successful recovery of the environment are
incentives in and of themselves. This preamble discussion on the
different aspects and avenues of coordination offers guidance on those
areas NOAA has identified through this rulemaking process. There are
undoubtedly more areas where the various parties can work together.
Comment: Most of the commenters agreed that trustee coordination is
crucial to a successful and expeditious damage assessment and that this
coordination is strongly encouraged by OPA. These commenters urged NOAA
to provide clear but flexible guidance on trustee coordination. They
noted that, absent such language, the assessment process is more likely
to be adversarial and have the potential for overlapping studies and
claims. Another commenter stated that this coordination would help to
ensure that all potentially affected trust resources are included in
the assessment process.
Response: NOAA agrees that coordinated efforts are best for all
parties involved and can spare much wasted time and expense.
Comment: A large number of commenters on this issue pointed out
that good coordination among trustees is essential to avoid double
recovery, prohibited by OPA. Some of these commenters suggested that
the trustees should be required to include in their damage claim a
certification of how the assessment avoids double recovery. Several
commenters stated that coordination among trustees would do much to
improve the efficiency of assessments, particularly to avoid duplicate
assessments, and the success of the assessment. Other commenters
pointed out that better coordination could avoid prolonged and
unnecessary litigation, and speed the actual restoration and recovery
of injured resources. One commenter noted that coordination would help
avoid competition among trustees for sometimes limited funds available
to pay damages. Finally, some commenters noted that when faced with
multiple assessments and claims the RP(s) is forced to commission
parallel assessments in its own defense.
Response: Coordinated efforts would help avoid double recovery of
damages. NOAA does not include in this proposed rule a requirement that
the trustee(s) include a certification of how double recovery is
avoided. That kind of detail will be resolved through the cooperative
process. These cooperative efforts allow trustee agencies to
efficiently use limited budget and personnel for a successful effort.
These efforts may also foster cooperative efforts with the RP(s) as
well.
Comment: Several commenters urged NOAA to prescribe specific
sanctions against trustees who do not coordinate assessments. Most of
these commenters stated that trustees who do not coordinate their
assessments should be denied the rebuttable presumption for the
assessment. Others stated that if trustees do not coordinate, they
should be required to affirmatively carry the burden of proof to show
no overlapping of claims. Finally, some of these stated that they would
urge the U.S. Coast Guard, in the promulgation of its claims against
the Fund regulations, to deny payment from the Fund to trustees who do
not coordinate.
Response: This proposed rule does not contain penalties for failure
to cooperate. Since these coordinated efforts are encouraged and not
required by the proposed rule, the rebuttable presumption would not
hinge on the presence or absence of coordination. Trustees should
recognize, however, that assessments will be more effective and
successful if coordinated. The suggestion that disbursements from the
Fund be denied to trustees who do not cooperate is clearly outside the
scope of this proposed rule.
Comment: Several commenters stated that the rule should encourage,
or require, trustees to establish a committee to coordinate resource
damage assessment and restoration activities among trustees as well as
RPs. These commenters stated that the trustee council should also
designate a committee chair.
Response: NOAA points out that past experience has shown the
success of, and need for, trustee committees or councils. These
councils are discussed in the section of this preamble describing the
trustee MOU.
Comment: Several commenters stated that, since federal and state
trustees are co-equals under OPA, there should be an equal number of
state and federal trustees involved in the assessment activities, each
with his own vote or, failing that, the trustees should operate on
consensus.
Response: NOAA agrees that natural resource trustees are equal
partners in the protection and restoration of the environment. However,
the number and type of trustees involved in a particular discharge is
entirely incident-specific. NOAA would certainly not like to see
trustees jockeying for control of a situation by ``stacking''
committees with large numbers of representatives. Since decisions
should be made through the consensus of the trustees involved, the
number of particular representatives is immaterial.
Comment: Although many of the commenters agreed that decisions
among trustees should be through consensus, the commenters pointed out
that NOAA should provide guidance for the case involving controversial
issues where consensus among multiple trustees is not possible. One of
these commenters suggested that NOAA might consider having trustees use
a mediator or facilitator for these deliberations.
Response: NOAA encourages trustees to decide upon a decisionmaking
process before a discharge occurs. Such agreements may easily be
modified at a later date, but are extremely difficult to decide during
a discharge event. NOAA does not believe that the proposed rule could
provide a mechanism that would apply to all discharges.
Comment: At least one commenter indicated that NOAA should develop
a list of technical experts that could be called upon to carry out
preassessment and assessment/restoration activities in order to ensure
efficacy in the process.
Response: NOAA agrees that such a list may be useful. However,
since the majority of damage assessments will likely be localized, a
list provided by NOAA may not prove useful to the local trustee(s).
NOAA encourages the trustee(s) to assemble such lists as part of the
prespill planning process, based upon past experience and the
qualifications of potential experts. The trustee(s) is advised to be
aware of conflicts of interest when developing such lists.
``Lead Administrative Trustee (LAT)''
Comment: Many of the commenters stated that the designation of a
Lead Administrative Trustee (LAT) is crucial to the success of an
assessment. One commenter noted that the current practice results in a
de facto LAT in the person of the litigator who conducts the
negotiation, a process which takes the issues out of the hands of the
resource manager.
Response: NOAA agrees that trustees are in a much better position
during a discharge if they can decide among themselves whether a LAT
would be useful, and if so, who should serve in that position.
Comment: Some commenters stated that the LAT be a federal trustee,
others that the LAT be a state official. Some suggested that the rule
allow for the LAT to be either an official from a federal or state
agency or a tribe with no restrictions. One commenter suggested that
there be appointed co-LATs, with the duties rotating among these
accordingly. Another commenter suggested that there may be many cases
in which it would be appropriate for there to be a single non-federal
LAT. Finally, one commenter pointed out that U.S. EPA is required by
E.O. 12777, to amend the NCP to indicate that the federal trustees
shall designate one federal trustee to act as the LAT in the event of a
discharge of oil.
Response: NOAA points out that any of the possible suggestions for
LAT designation could be appropriate. The designation of a LAT is so
fundamentally affected by the circumstances of the event that it would
simply not be possible for NOAA to decide ahead of time on behalf of
the trustees. Finally, a discussion of federal trustee requirements
under E.O. 12777 is given in the discussion in this preamble on
prespill planning.
Comment: Several commenters stated that where there are both
federal and state trustee agencies involved, there should be one
federal LAT and one state LAT selected. One commenter noted, however,
that the correct allocation would be one federal LAT and one non-
federal LAT.
Response: NOAA notes that, as mentioned in an earlier discussion,
it is possible that trustees at an incident could decide to appoint co-
LATs. Another way to deal with potential multiple LATs would be to
rotate or split LAT duties on a mutually agreeable schedule among the
trustees.
Comment: Many of the commenters who spoke to the issue of how one
would select a LAT stated that the rule should allow for the trustees
to make that decision at the time of the discharge, based upon the
particular situation. One commenter, however, asked for specific
guidance in the rule as to how a LAT would be selected, while another
stated that such designation would take place in the prespill planning.
Some of the commenters suggested that the trustees consider such things
as the habitat affected, the experience of the trustees involved, or
the liability limits of possible state law as opposed to OPA. Other
commenters pointed out that the scope of the effects should be the
deciding factor. A state agency may have the majority of concerns in a
particular situation, but in other situations the effects may extend
well beyond the state's borders so that the federal trustee may be the
logical choice. Finally, one commenter suggested NOAA adopt the
provisions found in 43 CFR 11.32(a)(1)(ii), which suggests appointment
of a lead official based upon the trusteeship of the resources most
affected or upon the ownership of the waters or land upon which the
incident occurs.
Response: Again, NOAA notes that all of these suggestions may be
considered in the selection of a LAT, but that it would be impossible
to require a particular designation within the proposed rule.
Comment: Several commenters stated that the LAT's duties should be
ministerial, i.e., scheduling meetings, coordinating communications
with the OSC and the RP(s), serving as a central contact for
information exchange and data collection. Some of the commenters noted
that the nature of the LAT's duties should not be allowed to usurp or
interfere with the rights of the other trustees. Other commenters,
however, suggested that the LAT should have a true leadership role.
Response: NOAA agrees that the LAT's duties should be mainly
administrative unless all trustees agree otherwise.
Comment: Commenters on the issue of arbitration authority for the
LAT were split. Many of the commenters stated that the LAT must not
have the authority to preempt the other trustees' exercise of their
trustee responsibilities. These commenters noted, as support, that OPA
requires the various classes of trustees be responsible for conducting
assessments for their own resources. These commenters also pointed out
that arbitration authority in one trustee would be an impossible
situation where that trustee is also the response agency or the RP.
Response: NOAA points out that the intent of Congress is quite
clear on the issue of any trustee having preemptive authority over
other trustees. The OPA Conference Report, at 209, states that ``[o]ne
class of trustees cannot preempt the right of other trustees to
exercise their trustee responsibilities.''
Comment: The other side of the argument was presented by quite a
few commenters. These commenters noted that a LAT with arbitration
authority is a necessity for any assessment. They pointed out that
there must be someone with the authority to settle disputes, or the
integrity and effectiveness of the assessment are lost. These
commenters argued that any assessment without a decisionmaker would
break down into a contentious, ineffective process. Some endorsed 43
CFR 11.32(a)(1)(ii) as an effective way to appoint an arbitrator LAT.
Response: NOAA agrees that some process should be worked out for
settling disagreements or disputes. However, as stated earlier, this
rulemaking could not dictate that process. Also, as mentioned elsewhere
in this proposed rule, there is no prohibition against trustees doing
parallel assessments so long as there is no double recovery of damages.
Comment: Some commenters expressed concern over the trustees'
ability to reach agreement by consensus. One commenter even suggested
that the LAT be vested with the sole decisionmaking authority. One
suggested that the LAT should have arbitration authority, and one
suggested that all trustees always acknowledge NOAA in that role.
Response: No trustee can abrogate another trustee's(s')
responsibility. Experience has shown that once the trustees have become
fully informed of the facts of a particular incident, their common
interests lead to consensus decisionmaking. NOAA agrees that in any
incident an agreement upon the appointment of a LAT should be an early
order of business. For the reasons discussed regarding agreement by
consensus, giving arbitration authority to the LAT would not be
workable. Since the selection of the LAT is usually dependent upon the
circumstances peculiar to each incident, advance designation of NOAA,
or any other trustee in that role, would not appear to be a prudent
procedure.
Comment: One area that some commenters felt needed clear language
in the rule was where a trustee is also the RP. In such cases, these
commenters stated that the trustee/RP should never be allowed to serve
as the LAT, unless, as suggested by one commenter, there is unanimous
consent of the other trustees.
Response: NOAA notes that trustees at the time of an incident may
need to decide whether another trustee who is also an RP could serve as
the LAT. Such selection is not impossible, but should be considered at
the time.
Comment: Some commenters suggested that in some cases no LAT may be
designated, at the option of the trustees.
Response: NOAA agrees that there may be cases where there is no LAT
selected, but only where there are state and no federal trustees.
Comment: Various commenters agreed with appointing a LAT. Many
suggested that all trustees should agree upon a LAT prior to receiving
funds from the OPA trust fund, so that all would have the necessary
incentives to meet reasonable and responsible guidelines for their
expenditures.
Response: Federal trustees, under E.O. 12777, may need to agree to
designate a federal LAT before receiving monies from the OPA Fund. The
management of that Fund, however, is not within the scope of this
proposed rule.
Comment: Several commenters agreed that trustees should coordinate
the assessment/restoration process, but pointed out that OPA does not
preclude different trustees from conducting parallel assessments with
individual plans, so long as there is no double recovery of damages.
Response: NOAA notes that these commenters are correct. The
trustee(s) may, under OPA and this proposed rule, conduct separate,
parallel assessments so long as there is no double recovery of damages.
Comment: One commenter suggested that NOAA should propose guidance
on when a foreign trustee could serve as the LAT, particularly when the
LAT's duties require spending U.S. public funds.
Response: Like so many of the other issues in trustee situations,
the option of selecting a foreign trustee to serve as LAT is best
decided by parties involved in a particular discharge.
Comment: Quite a few commenters suggested that NOAA has the
technical expertise and experience to assume the role of LAT for
assessments conducted pursuant to OPA.
Response: NOAA appreciates the commenters who suggested that NOAA
should serve as the federal LAT at discharges. However, it would
clearly be inappropriate for NOAA, within this rulemaking, to appoint
itself LAT.
``Model MOU''
Comment: A number of commenters recommended increased coordination
between state and federal agencies through a Memorandum of
Understanding (MOU). One commenter suggested that MOUs should be
generic enough to cover any applicable discharge, but specific enough
to avoid conflict. Some were concerned that a state would be given only
one voice or participant pursuant to an MOU. Some cited the need for
multiple-state, and state-by-state/regional MOUs, or even MOUs based
upon tribal jurisdictional areas. Another commenter noted that the
model MOU should not require unanimous decisionmaking.
Response: The model MOU contained in NOAA's notice was included as
an illustration of the type of agreement that would facilitate and
coordinate the trustees' activities. The nature of an MOU developed by
trustees would need to be as general or specific as deemed necessary by
the particular trustees. It is understandable that each region and/or
incident would require some modification to adapt to local
circumstances. For example, the inclusion in the model MOU of one state
signature line was not intended to preclude the situation where more
than one state agency exercises trustee responsibilities, or the
situation where more than one state or tribe might be involved in the
same incident or region. Also, with consensus decisionmaking, the
number of voices (or ``votes'' in the words of one commenter) speaking
for any given trustee is essentially immaterial.
Comment: One commenter suggested that an MOU should be developed
through prespill planning to include provisions for the establishment
of: damage assessment working groups, trustee responsibilities, trustee
notification, coordination with the OSC or designee and trustees'
activities in the response structure, opportunity for participation by
all affected trustees, designation of a lead trustee, decisionmaking
procedures, contracting objectives and guidelines, maintenance and use
of damage recoveries, and other such provisions.
Response: To the extent practicable, NOAA agrees that all parties
would benefit from having such provisions included in a prespill MOU.
Comment: Another commenter suggested that NOAA, in particular,
should enter into MOUs with state trustees concerning every important
aspect of the state trustee's assessment process.
Response: NOAA has worked with certain state trustees under MOUs
for particular discharges and would hope to reach agreement on the
model MOU language with as many states as possible.
Comment: The concept of prespill planning and development of an MOU
between the potentially affected trustees was favorably received and
encouraged by those who commented upon it.
Response: NOAA agrees fully and through this proposed rule is
encouraging prespill planning in order to reduce, to the extent
reasonably practicable, the waste of precious time in start-up
activities when an incident occurs.
Comment: Two commenters suggested that failure to participate in an
MOU, or failure to coordinate efforts between the trustees, should
result in the loss of the rebuttable presumption that the trustees'
assessments were conducted in accordance with the regulations. Another
commenter noted that the MOU should provide for the loss of the
rebuttable presumption if NOAA's rule is not followed.
Response: A trustee cannot be forced to enter into an MOU, and the
failure to do so cannot result in the elimination of a right granted to
it by statute. Further, the use of this proposed rule is optional, not
mandatory. Therefore, although the trustees may agree on an MOU to use
this proposed rule, such an agreement would be optional to the
trustee(s).
Comment: One commenter suggested that development of local and
regional assessment protocols or MOUs be required by the proposed rule.
Response: The proposed rule recommends that such agreements be
developed.
Comment: One commenter addressed the ``confidentiality'' provision
contained in the model MOU, and expressed concern that its inclusion
would hinder public participation in the decisions to be made by the
trustees.
Response: NOAA is committed to public participation to the greatest
extent possible in all of these situations. However, on a case-by-case
basis, some provision for confidentiality may be necessary in the event
of a potential adversarial proceeding against the RP(s).
``MOUs With Potential RP's''
Comment: Some commenters suggested that potential RPs should be
involved in the development of, or included as parties to, the
trustees' MOUs. Another commenter pointed out, however, that the RP
MOUs should be developed separately from the trustee MOUs because the
responsibilities of the parties are so different. One commenter
specifically suggested that a generic enforceable agreement be drafted
and negotiated with a large group of potential RPs. This agreement
could then be offered to an RP following a specific discharge to allow
early RP involvement without wasting time negotiating. The commenter
noted that the agreement would be enforceable and would allow the
trustee(s) to oversee all work done by the RP(s). Finally, the
commenter noted that the development of such an agreement prior to a
discharge would allow meaningful public comments on the contents of the
agreement.
Response: The basic concept underlying these MOUs is an attempt to
organize and coordinate the efforts and duties of the various trustees
at the time of an incident or, hopefully, prior to the occurrence of an
incident. The trustee(s) is encouraged, where appropriate, to consider
potential RPs in this process, or to negotiate separately with
potential RPs to develop prespill enforceable agreements.
``Advantages of Prespill Planning''
Comment: The vast majority of the commenters agreed that prespill
planning would be advantageous. Some of the advantages included:
helping to define the response priorities of the damage assessment
activities to be accomplished during response; presenting a united
front to the RP(s); increasing the public's perception of a coordinated
effort; improving the transition from ``cleanup'' to ``restoration;''
sorting out organization and administrative responsibilities in
advance; increasing chances of a successful recovery; increasing
timeliness of the natural resource damage assessment; and improving
chances of involving more interests in advance of a discharge.
Response: NOAA agrees that all of these goals are in the best
interest of the public and environment.
``Disadvantages''
Comment: Some of the commenters pointed out potential problems
associated with the concept of prespill planning. These possible
problems included: The potential for conflicting provisions with the
existing response structure; adding another layer of planning
activities that would burden smaller companies, and the personnel and
budget constraints of many states; and adding another layer of plans
that might cause confusion during a response. Some commenters noted
that the prespill planning process would be quite expensive, diverting
millions of dollars that could be used for true environmental purposes,
and would not be practical for all locations, but should be limited to
endangered species, sensitive areas, or areas where large discharges or
effects are likely to occur. Another commenter noted that such plans
might identify unnecessary studies that might be carried out in the
event of a discharge, with little or no connection to the actual or
anticipated effects related to that specific discharge.
Response: NOAA notes that engaging in prespill planning is not
intended as an empty exercise. Where prespill planning would complement
preparedness plans already in place, or create such a plan not yet in
existence, the planning would be a worthwhile effort. It would not be
worthwhile, however, to go through the effort if the result is not
beneficial or would interfere with other duties. The level of effort
and expense should depend upon the need. Also, the purpose of the
prespill planning is to clearly identify the types of concerns and
possible solutions that the trustee(s) is likely to encounter when the
oil hits the water.
``Optional''
Comment: Several commenters stated that the prespill planning
should be discretionary, particularly if funding is not available, and
should not lose the rebuttable presumption argument for an assessment
conducted in an area where there are no applicable prespill plans in
place. Another commenter suggested that these plans should be funded by
the federal, e.g., Oil Spill Liability Trust Fund, and/or state
governments.
Response: NOAA agrees that the prespill planning is optional and
recognizes that agencies need funding for such activities. Trustees
will undoubtedly need to draw to some extent from their budgets to
develop such plans. The management of and disbursement of some funds,
e.g., Oil Spill Liability Trust Fund, will be dependent on the
regulating agency and is outside the scope of this rule.
``Other Plans''
Comment: Many commenters spoke to the issue of other existing or
future plans under OPA, particularly the NCP. Some commenters stated
that the damage assessment prespill plans should be appended as
discrete documents to the various contingency plans, such as the Spill
Prevention Control and Countermeasure Plan program for oil storage
facilities (U.S. EPA, 40 CFR 1 12, 1974). Other commenters stated that
the trustees should defer to the new NCP, especially the fish and
wildlife response plans, and not require a separate level of planning
that might be duplicative and counterproductive for trustee concerns.
Other commenters stated that the NCP would not be the appropriate
vehicle for trustee plans because the contingency plans are focused on
response scenarios, not resource concerns. Many of the commenters
suggested that the trustee planning would fit in well with the
contingency planning at the local area committee level since these area
committees are to be formed in logical geographical areas and many of
the personnel and agencies involved in a discharge will have a chance
to meet and discuss issues of common concern at the local level. This
prespill interaction at the local level will provide increased response
and cooperative actions during both spill drills and actual discharge
events. One commenter even suggested that Local Area Plans be amended
to provide for assessment procedures.
Response: NOAA agrees that some trustees may want to have damage
assessment prespill plans referenced by or attached to response
contingency plans so that the OSC would have the broadest possible base
of information available during a discharge. Such decisions would be
left to the trustee(s), in coordination with the OSC. However, NOAA
does not agree that this type of planning is unnecessary for the
purposes of response cleanup and natural resource concerns occurring as
part of the response phase of a discharge incident. Resource planning
is a vital part of ACPs. Prespill plans will be needed to address the
damage assessment coordination issues of the natural resource trustees.
NOAA does agree that the Area Planning Committees called together for
response planning would, in many cases, be a logical starting point for
setting up follow-up meetings of the trustees for damage assessment
planning activities. It should be left to the trustee(s) to choose the
appropriate vehicle and areal extent of trustee planning exercises.
``Parties Involved''
Comment: Many of the commenters agreed that representatives of
federal, state, tribal, and foreign trustees in logical geographical
areas should meet to develop prespill plans. Several commenters,
however, noted that prespill planning should involve not only the
various trustees, but members of the response agencies and
representatives from industries that may be involved in transport or
storage of oil in those areas covered by the plans. Some commenters
noted that private response contractors should also become involved and
not only gain from meeting and establishing relationships with agency
personnel, but also through becoming more aware of environmental
concerns associated with various response strategies.
Response: NOAA agrees that the broader the planning and information
base the better for prespill planning purposes. However, the most
appropriate forum for relaying the issues would be as technical working
group members of the OPA Area Committees. Additionally, NOAA again
cautions that the scope of these planning actions is left to the
judgment of the trustees.
``Specific Response-Related Prespill Planning Issues''
Comment: Some commenters specifically noted certain areas of common
concern to both the trustee(s) and OSCs. For example, it was suggested
that prespill agreements could be worked out with the OSC-chaired area
response structure to cover: establishing communication roles;
identifying trustee damage assessment and OSC contacts; human health
and safety requirements; conducting spill drills that include damage
assessment components; working with the Fish and Wildlife and Sensitive
Environments working groups of Area Committees to identify resources of
particular concern; and issues of sampling, information, and data
sharing.
Response: NOAA agrees that there are numerous areas of overlapping
interests between the damage assessment trustee(s) and OSC coordinated
response structure. These issues are discussed at length in the section
of this preamble concerning coordination between damage assessment
trustees and the OSC coordinated response structure.
``Public Involvement''
Comment: Many commenters stated that the trustee(s) should involve
the public in the prespill planning activities. Some commenters stated
that this involvement could be accomplished through a review and
comment process of drafted prespill plans. Other commenters suggested
that members of the public could be helpful in developing those plans.
One commenter noted that public involvement in the prespill plan is
important to avoid litigation.
Response: NOAA believes that public involvement in prespill
planning is important to the success of these plans. Public awareness
is generally high during an actual discharge. Much public anxiety could
be avoided if the public is informed of the operations of the network
of agencies during a discharge. As these commenters noted, vital
information can be gained by those members of the public most familiar
with the natural resources.
``Scope''
Comment: Several commenters suggested that the prespill plans be as
broad as possible to cover as many trustee concerns as possible before
the oil hits the water. Another commenter, however, recommended that
damage assessment prespill plans not be rigidly drawn. The commenter
cautioned that the plan could become a liability where the nature of a
particular discharge is not contemplated in the prespill plan. Further,
the commenter stated it could be an unwise expenditure to develop a
contingency plan broad enough in scope to address an endless array of
possible discharges.
Response: NOAA agrees that such plans should be as broad as
possible. However, as noted previously, there are many demands upon the
time and resources of trustee agencies. The plans, therefore, should be
tailored to meet the needs of the trustee(s) and must, of necessity, be
flexible.
``Contents''
Comment: Most of the commenters had specific suggestions as to the
particular items to be included in prespill plans. These items
included: identification of sensitive areas; appropriate response
techniques that would have the least adverse effect on resources of
concern; location, types, and level of detail of baseline information;
identification of the types of data needs of trustees during a
discharge and subsequent assessment; agency contacts for the purpose of
notification and information sharing; surveillance and monitoring
schemes; sampling protocols; sensitive ecological, economic, and social
areas and priorities for protection; resource inventories; avenues for
trustee input on response actions; response plans for trustee actions;
methods for public information and involvement; socioeconomic effects;
prespill drills; and a compilation of various environmental and safety
laws that might apply to a damage assessment effort.
Response: NOAA agrees that the components listed in these comments
are the types of concerns that should be addressed. However, the items
mentioned for inclusion in prespill plans mixes: (1) Issues that should
be covered in the ACPs and only referenced in the natural resource
damage assessment prespill plans; (2) issues that should be covered in
both (but normally collected only once, sometimes by working groups of
the Area Committees and others by the natural resource damage
assessment prespill plan working groups); and (3) items belonging only
in the damage assessment prespill plans. In the first group belongs:
appropriate response technologies, priorities for protection, avenues
for trustee input on response actions, response plans for trustee
actions, and most of the surveillance and monitoring. In the second
group belongs: identification of sensitive areas, public information,
contacts notification and information sharing. The remainder falls in
the third group.
Comment: A commenter proposed that NOAA establish a centralized
database that can be accessible to all trustees nationally. The Lead
Administrative Trustee at each incident should be obliged to ensure
that the data are collected and submitted to the central database in a
compatible manner. Several states are now implementing and upgrading
Geographical Information Systems (GIS) that could be the repository of
this data. Such a database would save time and money for both the
trustee(s) and RP(s). It would be a useful way to build a history of
scientific information and costs.
Response: NOAA agrees that a centralized database would be helpful
to trustees in the future, but has no plans for such a project at this
time. However, NOAA has conducted a comprehensive literature survey of
restoration techniques that is available as an additional guidance
document.
Comment: One commenter stated that NOAA should emphasize the need
for involvement of experts on the fate, behavior, and ecological
effects of oil and various cleanup and restoration options. One
commenter noted that scientific literature is available to guide
decisionmakers. Another commenter recommended that the trustee(s) refer
to area contingency plans in determining environmentally sensitive
areas.
Response: NOAA agrees that the trustee(s) should take advantage of
existing sources of appropriate information. The Area Contingency
Plan's Fish and Wildlife and Sensitive Environments Annex is also the
repository of trustee(s) input for response actions and should contain
a mechanism for ongoing input during the spill's response phase to the
OSC about response actions affecting natural resources.
Comment: One commenter suggested NOAA, with its extensive
experience and expertise in habitat and species restoration, offer the
services of NOAA's ``Restoration Center'' or NOAA's HAZMAT group to the
trustees as necessary.
Response: NOAA appreciates the opinion of the commenter and notes
that NOAA, in appropriate circumstances, may lend any expertise it has
to the other trustee(s). However, there may be discharges in which NOAA
does not have experience to share.
``Restoration''
Comment: One commenter stated that trustees might include in
prespill planning the development of an overall restoration approach.
Response:
FR Doc. 94-225 Natural Resource Damage Assessments
NOAA agrees that the earlier the trustee(s) begins to
think in terms of restoration, where possible, the better. Elsewhere in
this preamble, NOAA states that, where the trustee(s) has adopted a
regional restoration plan for a specific area, recoveries of several
discharges may be pooled to help fund such plans. This option for use
of recoveries will likely be most useful in areas with long-term
pollution effects where damages recovered from a single discharge would
be too small to improve the ecosystem.
``Limits/Exclusions''
Comment: Several commenters pointed out that even comprehensive
prespill plans will not be able to foresee the multitude of possible
unique circumstances and events associated with a particular discharge.
One commenter pointed out that the trustee(s) should stress that there
may be some data requirements for a particular discharge that might not
be covered by generic prespill plans. Another commenter suggested that,
instead of trying to list within prespill plans specifics on sampling,
data collection, baseline studies, and specific contract obligations
and performance standards, the trustee(s) could reference the locations
of such items in a supplemental document format. Another commenter
stated that long-range damage assessment and restoration management
plans should be developed only after a discharge, when the specifics of
the resource injury are known.
Response: NOAA recognizes that no plan can ever encompass all
possible events. Therefore, any plan must be flexible and recognize
that it is subject to change in the event of a discharge. NOAA also
agrees that any long-range damage assessment would have to be tailored
to the specific discharge, but points out that certain components, such
as administrative management, will likely need to be addressed for all
discharges. As to restoration management, as noted previously, some
restoration planning for areas frequently affected by discharges might
be possible.
``Guidance''
Comment: One commenter suggested that prespill planning activities
should include the development of a ``generic'' damage assessment
``initiation'' workbook. Such a workbook could include a general list
of the types of information that the trustee(s) would routinely need
during the early stages of response and damage assessment. Another
commenter stated that the trustee(s), in prespill planning activities,
should recognize the importance of developing socioeconomic damage
assessment responsibilities, guidelines, and procedures. Finally, one
commenter stated that prespill plans should reflect the fact that
planning officials from agencies may not be the trustee officials who
would actually be involved in the assessment and restoration
activities.
Response: NOAA encourages the development of guidance documents or
workbooks wherever possible. Such knowledge should be documented so
that one is not ``reinventing the wheel'' with each discharge. NOAA
also notes that socioeconomic damage assessment issues might be covered
in prespill planning, should the trustee(s) desire. Finally, NOAA
recognizes that in some entities, contingency planning and response
personnel may not be the same personnel involved in damage assessment
and activities. Therefore, it is important that all those concerned in
a discharge, both from the response side and the trust resources side,
become familiar with the various responsibilities of each other before
the oil hits the water.
Coordination With Response Agencies Response to Comments
``General''
Comment: Commenters were almost unanimous in agreeing that the
actions of OSC response agencies and the response and damage assessment
trustees should be coordinated to ensure effective and efficient
cleanup and minimize the environmental effects of the discharge. Some
of these commenters urged NOAA to clearly define each agency's role in
the cleanup and assessment processes. Others noted that such
coordination is already addressed in section 1011 of OPA and,
therefore, should not be repeated within NOAA's rule. These commenters
were concerned that another layer of required coordination would add
possible confusion and conflict. Therefore, these commenters suggested
general, non-binding guidance for this proposed rule.
Response: NOAA agrees that trustee agencies should work closely
with OSC agencies to minimize the effects of a discharge through
cleanup strategies. Although NOAA cannot dictate to OSC agencies their
roles in cleanup, NOAA does give guidance to the damage assessment
trustee(s), in this proposed rule, on interaction with the response
structure regarding damage assessment issues. NOAA recognizes that
coordination between the OSC and trustee agencies is covered in section
1011 of OPA and that such duties will be covered in other rulemakings
under OPA. Any guidance in this proposed rule is intended to supplement
the explanation of the damage assessment trustee's concerns about
efficient coordination. As such, NOAA agrees that any guidance in this
proposed rule is not binding.
``Role of OSC''
Comment: Many commenters pointed out that, during a response to a
discharge, the On-Scene Coordinator (OSC) is the government's
authorized source of information and directions to the RP(s). As such,
the OSC must be advised of and retain oversight over all activities
occurring during that response phase. Other commenters, however, noted
that the OSC cannot divert his attention from the response to
coordinate damage assessment. Also, any concerns over litigation,
whether for response costs or natural resource damages, should not come
up during the response where the common goal should be prompt and
effective response.
Response: NOAA agrees that only the OSC is the spokesperson for
response purposes at a discharge and, as such, has oversight of all
response activities. However, the OSC has quite enough to do during a
response without needing to be burdened with assessment duties as well.
In any event, the trustee(s) has these assessment duties as statutory
requirements and cannot pass those duties off to an OSC.
``Response Preeminent''
Comment: Several commenters stress that coordination between the
trustee(s) and the OSC must not deter the OSC from overseeing the
response effort, or undermine the cleanup as effectively and promptly
as possible or hamper free flow of information.
Response: NOAA agrees that the trustee(s) should not disrupt the
cleanup directed by the OSC.
``Role of Trustee(s) During Response''
Comment: Several commenters pointed out that the trustee(s),
because of resource expertise, has an advisory role to provide input in
the response planning process and help influence response priorities
and techniques for protection. These commenters noted that, during the
response, the trustee(s), not the OSC, has the responsibility for
damage assessment issues and should be the one collecting information
for the damage assessment, not the OSC or the RP(s). Some commenters
stated that the trustee(s) does not, in fact, have a response role as
such and should not issue orders to the RP(s) during a response. One
commenter noted that, if the trustee(s) is involved in natural resource
damage assessment activities during a discharge, he should not have a
part in decisionmaking since there may be a conflict of interest or
conflict of mission when one agency has both responsibilities. Another
commenter noted, however, that there is no conflict of interest if one
agency is both trustee(s) and response agency since the role of the
response agency is to protect, enhance, and restore the environment,
which is consistent with the mission of the trustee(s).
Response: NOAA agrees that the trustee(s) when acting as the
resource expert, has an advisory role, as the resource expert, to the
response planning process and that the trustee(s) has the
responsibility for damage assessment. However, in the interest of
efficiency, if an OSC or the RP(s) is collecting samples, those samples
may be shared with the trustee(s) if all parties are agreeable. NOAA
believes that the trustee(s) should always be involved with response
decisions. As one of the commenters pointed out, both the trustee(s)
and OSC agencies have the same basic mission--protection of the
environment. These roles complement, not conflict with, each other.
``Decisionmaking''
Comment: Several commenters noted that an emergency response cannot
be directed by committee or consensus. One of these commenters
suggested that the goal of coordination is to involve the most
knowledgeable discharge experts, not simply to involve the greatest
number of interested parties. Finally, this same commenter noted that
the Advance Notice of Proposed Rulemaking was not clear as to the
extent to which NOAA is recommending participation of trustee agencies
in discharge response decisionmaking.
Response: NOAA acknowledges that emergency decisions cannot be
directed by outside committees and did not mean to suggest differently.
NOAA agrees that decisionmaking should be focused through knowledgeable
advice. NOAA also points out that discharge response decisions are the
ultimate responsibility of the OSC, but the OSC does not make these
decisions without foundation. The trustee(s), in their response role,
have a consultation role to play in the decisions.
``Notification/Consultation''
Comment: One commenter pointed out that to fulfill the statutory
obligation of section 1011 of OPA, the OSC will need to initiate
immediate contact after a discharge with all affected trustees and will
also need to communicate with them throughout the removal process. Some
commenters stated that they wanted to be notified of every discharge.
One commenter noted that this kind of notification would ensure that
only the trustee(s) would be deciding if the discharge warrants a
damage assessment or not. Another commenter stated that, even if the
affected trustee(s) does not take damage assessment action at each
discharge, the notification requirement is important to build a
comprehensive history of a particular site. Some commenters suggested
that a routine notification procedure, for example, once a week for
most discharges, with basic information sent to all potential trustees,
would be sufficient for a trustee(s) to determine whether trustee
resources may suffer significant injury. However, for significant oil
discharges that may affect trustee resources, the trustee(s) will still
require simultaneous notification. One commenter suggested that, to
differentiate those discharges that would require weekly rather than
simultaneous notification, resources could be categorized
hierarchically in terms of value. One commenter stated that the DOI
rules suggest that the most likely federal or non-federal trustee could
receive the notification and be responsible for notifying other
trustees. Another commenter suggested that NOAA consider the creation
of a Damage Assessment Officer position, through NOAA resources, to
work with OSC for the purpose of notification and communication. This
person would augment the resources targeted to the notification process
and allow expeditious determination of the discharge's significance.
Response: NOAA agrees that the OSC will notify the trustee(s) of
discharges. It is also understood that it is the statutory duty of the
trustee(s) to determine whether a discharge warrants a damage
assessment, especially since the trustee(s) cannot assign this duty to
the OSC or any other entity. NOAA also notes that notification of
discharges helps the trustee(s) build an important history of the
area's exposure to discharges of oil. NOAA notes that a weekly
notification of the numerous relatively small discharges might be a
good arrangement to establish in the prespill planning. However, this
proposed rulemaking cannot dictate the timing or manner of notification
for either the small discharges or the larger ones. Nor can NOAA
establish in this proposed rulemaking that one or another trustee
agency will have the duty to notify all other trustees. There are
several problems with that kind of assumption of responsibility. First,
that duty to notify is already conferred upon the OSC by OPA. It is
unclear that it would be beneficial for some other agency to assume
that duty. Second, any trustee agency that might agree to serve such a
function as a surrogate for the response agency would have to recognize
the budget and personnel costs of such a duty. NOAA believes that
prespill planning is essential for working out such notification
requirements.
Comment: Other commenters noted that there are numerous regulations
to be promulgated by the response agencies pursuant to OPA that would
address, among other things, multiple duties in consultation with the
natural resource trustee(s). These commenters pointed out that the OSC
should not be burdened with the responsibility of determining all the
trustees to notify for a particular discharge.
Response: NOAA agrees that the consultation procedures should be
worked out during other pertinent rulemaking efforts. The
identification of trustees requiring notification is a good example of
the kind of process that should be developed in the prespill planning.
Comment: Some commenters cautioned that the current statutory
requirement that the RP(s) notify the National Response Center when
discharges occur does not include notification of such discharges to
the trustee(s). These commenters noted that the trustee(s) and OSC must
establish communication roles and identify contacts for purposes of
such notification. These commenters pointed out that the RP(s) should
not have trustee notification added to its responsibilities.
Response: NOAA acknowledges the fact that the only reporting
requirement of the RP(s) is to the National Response Center. There is
no duty to notify the trustee(s) over and above what is provided in
OPA. This proposed rule would not be an appropriate vehicle for such a
requirement.
``Data Sharing During Response''
Comment: Many commenters noted that information should flow freely
between response and damage assessment trustee agencies during an
event.
Response: NOAA agrees with these commenters and will encourage such
information sharing as much as possible.
Comment: One commenter suggested that the OSC may be able to gather
data on samples more efficiently than the damage assessment trustee
agencies and save time and avoid additional effects. Another commenter,
however, suggested that there should be damage assessment trustee data
collection teams separate from the OSC's response structure.
Response: NOAA agrees that it would be more efficient and less
risky to the natural resources to have the OSC-coordinated response
structure collect all information needed at the site of a discharge.
However, in most cases, such data collection is simply not possible.
Separate data collection teams may be a good idea so long as there is
no interference with the response and no ``unreasonable'' costs
associated with it.
Comment: Commenters noted that the OSC relies primarily upon
information about sensitive or valuable resources contained in the
appropriate ACP, but that this information can be augmented by the
advice of the trustee(s) during a discharge. Many of these commenters
noted that any information requested by an OSC to make a response
decision must be immediately provided, if available. These commenters
stated that withholding information due to litigation concerns does not
outweigh the need to minimize environmental damage. Some of these
commenters noted, however, that such information will become public
information through the OSC.
Response: NOAA notes that all of these concerns are valid.The fact
that some information may be used in some future litigation is not a
good reason for possibly impeding a response action.
Comment: Many commenters noted that the OSC, by nature of being on
scene, has information critical to the trustee's(s') preassessment work
and that this information should be shared with the trustee(s). One of
these commenters pointed out that by sharing such information with
damage assessment trustee(s), the OSC is allowing the trustee(s) to
spend time compiling any additional information it needs rather than
duplicating efforts. Other commenters noted that where the trustee(s)
damage assessment data needs are clear and not burdensome, the OSC
might be able to collect additional information on behalf of the damage
assessment trustee(s), so long as such efforts do not interfere with
the response effort.
Response: NOAA agrees that the OSC may be able to share much
information with the damage assessment trustee(s), thereby improving
the efficiency of both. The possibility that the OSC could actually
collect additional information beyond what is needed for response might
be worth exploring in the prespill plans and ACPs so long as the
parties understand that the OSC could not conduct such work if it would
interfere with the response.
Comment: Several commenters pointed out that the trustee(s) should
not exclusively rely upon the OSC to collect information necessary for
an assessment, but should be allowed to gather additional information
during the discharge.
Response: NOAA is of the opinion that where OSC-collected
information is relevant to the damage assessment process, such
information should be used to avoid redundancy and double counting.
However, it is ultimately the responsibility of the damage assessment
trustee(s) to collect the necessary data for a damage claim.
Comment: Some commenters noted that the OSC should seek early
involvement of the trustee(s) in order to share information about the
characteristics of the discharge and the potential effect to the
environment, particularly information on local conditions and
resources. Several commenters pointed out that this sharing of
information would also allow the trustee(s) to evaluate and make
recommendations on the response activities themselves, so that the
damage caused by the discharge is not worsened by the type of response
and cleanup techniques, but that the cleanup might accelerate the
recovery of the resources.
Response: NOAA points out that there is currently a mechanism for
funneling important resource information to the OSC, providing
technical advice and recommendations to minimize the effects of the oil
and response activities. The OSC accomplishes this by soliciting input
from trustee agency experts, academia, etc. The mechanism for relaying
this information is already in place through the ACPs, but could be
restated in the prespill plans.
Comment: One commenter stated that high-impact cleanup methods that
remove living organisms and greatly modify the habitat are not
justified when the oil left in the environment has already lost most of
its toxicity. There may be less injury and faster recovery with limited
or no removal and natural recovery. The commenter stated more research
is needed in all areas of restoration ecology. Several commenters urged
trustees to help plan response and cleanup actions that will have
lesser effects on the resources.
Response: NOAA agrees that more research is needed in the field of
resource restoration. The commenters are correct in pointing out that
trustee input to cleanup decisions may greatly reduce resource effects
to be corrected by restoration. NOAA agrees that the ecological effects
of any planned action should be considered in the restoration planning.
There may be certain instances where the public uses of an area may
require removal of residual oil in order to restore the services
provided prior to the discharge.
``Funding''
Comment: Some commenters were encouraged that there would be
provisions for the use of the Oil Spill Liability Trust Fund for
trustee activities, including the initiation of natural resource damage
assessments and time-sensitive damage assessment activities where other
funding is not available. Another commenter noted that agencies within
a state might not be the ones designated to apply for funding, but
still need access to the Fund to participate in the process.
Response: NOAA points out that the procedures for the management of
the Fund are the subject of different rulemaking efforts by the U.S.
Coast Guard and are outside the scope of this proposed rule. The
problem noted by one commenter as to different agencies within a state
having different roles is an internal state issue, clearly not within
this rulemaking. Hopefully, such problems can be identified and
resolved within the prespill planning.
``Define When `Cleanup' is Over''
Comment: Quite a few commenters requested guidance on when the
removal portion of a response would be deemed to have ended, and when
remedial and/or assessment activities might be more appropriate and
suggested criteria for the OSC to use in making this determination.
Some of these commenters noted that this determination is important
since liability for restoration measures can only be determined to be
necessary if natural resource injuries still exist after the legal
conclusion of the ``removal'' phase. Another commenter pointed out
that, although data on the scientific effects of a discharge should be
collected as soon after the discharge as possible, damage assessment
activities should occur only after the response and cleanup activities
are completed.
Response: NOAA notes that the end of the removal portion of a
response is defined by the OSC and it would not be appropriate for this
proposed rule to try to dictate the criteria for making that decision.
NOAA does note that there is a clear line of division, legally, between
removal and restoration. The commenters are correct in noting that
restoration is residual to response efforts. The trustee(s) must
determine what, if any, further actions beyond response work are
necessary for the recovery of the system. However, the trustee(s)
cannot always wait until the end of all response work before beginning
assessment/restoration activities. Such a delay would not be in keeping
with OPA's policy of expeditious actions on behalf of the environment.
```Cleanup' vs. `Restoration'''
Comment: Several commenters were concerned with the issue of
allowing the trustee(s) to undertake emergency restoration during
response. These commenters were concerned that the proposed rule might
blur the distinction between cleanup and restoration. Some of these
commenters noted that in practice the distinction between cleanup and
restoration eventually becomes difficult to maintain. These commenters
pointed out that failure to make the distinction clear could result in:
(1) Trustee-directed damage assessment activities conflicting with
ongoing cleanup operations; (2) restoration money spent to reimburse
cleanup activities; and (3) RP(s) requesting credits for
``restoration'' projects against assessed damages, when in fact those
restoration projects were actually cleanup activities. As an example,
one commenter pointed out that NOAA implied that physical removal of
contaminated sediments and bioremediation are restoration techniques,
whereas these were both considered to be cleanup methods during the
EXXON VALDEZ response.
Response: NOAA agrees that, although there must be a separation
under OPA between response and restoration because of the liability
provisions and different implementing authorities, in the practical
sense the two can sometimes involve the same type of activities. NOAA
notes that ``emergency restoration'' (discussed in the section on the
Preassessment Phase) should not conflict with on-going activities so
long as they are part of the OSC-coordinated response. NOAA also notes
that damages recovered for emergency restoration actions are not
reimbursements for response actions, but are to reimburse the
trustee(s) for actions deemed necessary due to the exigencies of the
situation. Also, the RPs is not granted a ``credit'' to offset damages
for funding emergency restoration. The effect of these emergency
actions is to lessen, perhaps dramatically, increased effects and,
therefore, larger future damages.
In some circumstances, the same action could be considered either a
removal or restoration action, depending upon the purpose of the action
and agency that is carrying it out. For example, if dredging is done
for human health concerns by the response agency, it is a removal
action. However, if the trustee(s) decides that cleanup to lower levels
of contamination is needed to take care of resource concerns, then
additional dredging may be necessary by the trustee to be able to
``restore'' the system.
Comment: One commenter pointed out that the natural resource
trustee(s) currently has authority under 43 CFR part 11 to undertake
emergency ``restorations'' to avoid, prevent, or mitigate certain
imminent threats to particular natural resources. However, this
commenter noted that restorative efforts, though important, cannot be
allowed to physically interfere with emergency response.
Response: NOAA is familiar with the 43 CFR part 11 provision for
emergency restoration and is hoping to foster consistency with this
proposed rule. As mentioned earlier, trustee actions are not to
interfere with response actions.
Coordination With the Public
Response to Comments
``Advantages''
Comment: One commenter pointed out that openness that allows for
broad participation encourages directness. Another commenter pointed
out that the public has the right to ensure that the assessment and
restoration are done accurately and thoroughly. Some commenters noted
that such participation will help find the most cost-effective actions
and equitable damages. Other commenters noted that the public has an
important and legitimate interest in the process and, in many cases,
members of the public have expertise in a particular area of concern
and can help with the assessment as well as restoration process. This
commenter also noted that public participation is needed as a
counterweight to the RP's participation. One commenter pointed out that
withholding information would impede public and scientific input into
the assessment process. Several commenters noted that every effort must
be made to ensure that the assessment and restoration process is
conducted in an objective manner to preserve public confidence in the
process.
Response: NOAA agrees that each phase of an assessment/restoration
process, including prespill planning, should involve the public to the
extent practicable. Members of the public are an excellent source of
information about particular natural resources and available expertise
in the community. The public, as the owners of the natural resources,
have a real interest in the assessment and restoration and might
provide a balanced representation of the public interest.
``Not Necessary''
Comment: Some commenters stated that there is no need for extensive
public involvement in the assessment process since the public natural
resource trustees are, after all, the representative of the public. One
of these commenters stated that the trustees' involvement in developing
plans and assessments satisfies OPA requirements of public involvement.
Another commenter pointed out that OPA directs the trustees to act on
behalf of the public.
Response: NOAA recognizes that the trustee(s) is, in fact, acting
on behalf of the public. However, this relationship does not mean that
the trustee(s) is not accountable to the public. The involvement of the
public in the assessment/restoration process does not mean the
trustee(s) is abdicating fiduciary duties to the public. One of these
duties is to adequately ascertain the wishes of the public concerning
the management of the public's natural resources.
``Scope/Extent''
Comment: One commenter stated that public participation should be
limited to safeguarding the trustees' accountability. Some commenters
stated that there should be some exceptions to the amount of public
participation allowed for an assessment. For example, one commenter
suggested that members of the public should be allowed access to raw
data if they demonstrate they have the resources to carry out the
analysis. One commenter stated that providing for less than full review
and comment by the public might appear that the trustee(s) is trying to
exclude the public from the process. Another commenter stated that
public review of purely scientific data would probably not interfere
with litigation or negotiations. Other commenters stated, however, that
the public review and participation should be mandatory for the entire
process, including any modifications of plans that have already been
available for public review and comment.
Response: NOAA notes that there will undoubtedly be some exceptions
to the public involvement in this process. After all, the trustee(s)
simply may not have the budget or time to allow for extensive public
involvement. There are times when quick action is necessary, in which
cases it would be unreasonable for the trustee(s) to wait for an
opportunity for a public meeting before acting. In fact, this need for
expediency is another reason for involving the public in the prespill
planning. Also, there may well be sensitive information that is simply
not possible to make public, e.g., litigation-sensitive material
relating to liability. NOAA agrees that public review of data would
not, in many cases, delay litigation or the assessment/restoration
process. Also, NOAA agrees that significant modifications to materials
that have already undergone public review should also be reviewed
wherever possible.
``Levels of Review''
Comment: Several commenters pointed out that the extent and degree
of public involvement on a particular discharge would depend upon the
particular situation and the type of activity. One commenter suggested
that the trustee(s) could inform the public through press conferences,
press releases, open meetings, and Federal Register notices. Other
commenters pointed out that public participation in each stage of an
assessment may be impossible due to the dynamics of the discharge and
would overburden the trustee(s) staff and budget.
Response: NOAA has stated elsewhere that the extent and degree of
public involvement must be left to the judgment of the trustee(s).
There will undoubtedly be discharges in which public review of
documents would be quite expensive when compared to the effects caused
by the discharge. Costs associated with dissemination of information
for review must be reasonable.
Comment: A few commenters suggested that NOAA is proposing greater
public participation in the assessment process than is provided for in
OPA.
Response: OPA describes the assessment process in terms of the
restoration planning process. Therefore, NOAA believes the trustee(s)
has the discretion to determine the level and extent of public
involvement.
``Timing''
Comment: One commenter suggested that the public have notice and
opportunity to comment after the Preassessment Phase, after the full
assessment, and before the adoption of a restoration plan. Another
commenter stated that OPA provides the public with an opportunity to
comment before restoration plans are developed and implemented. One
commenter suggested that the public should have the option to review
any modification of the Assessment/Restoration Plan. Another commenter
stated that even preliminary plans for discharges into sensitive areas
should be open for public review and comment. Another commenter stated
that public comment should not be requested until after the post-
recovery restoration plan is developed. One commenter stated that
public participation should be sought at the prespill stage, not during
a discharge investigation. Finally, one commenter stated that public
comment at any stage should be at the discretion of the trustee.
Response: NOAA is leaving the timing and scope of public
involvement to the judgment of the trustee(s). Clearly, in most oil
discharge cases, the trustee(s) will be unable to delay action to allow
for public review of all actions. However, at the first sensible
opportunity, the trustee(s) should inform the public of the state of
the process and seek public review as appropriate. NOAA agrees that the
best time for public involvement is in prespill planning when the
trustee(s) is not engaged in actual discharge activities. This does not
mean, however, that this prespill involvement would substitute for
appropriate public involvement in the case of an actual discharge. NOAA
also notes that the discussion of the assessment/restoration planning
process, found in subpart C of this proposed rule, provides for the
review of ``significant'' revisions.
``Notice of Meetings''
Comment: One commenter noted that notice of public meetings
concerning an assessment should be timely and posted in a publication
of general circulation.
Response: NOAA agrees that, to be successful, notice of any
meeting seeking public input must be published in a timely and visible
manner and in a local publication of general circulation.
``Delays''
Comment: Several commenters noted that public involvement should
take place during the response planning stage, not during an incident
when such involvement might delay the response. These commenters noted
that opening up the entire assessment process would significantly
decrease efficiency and could interfere with an objective evaluation of
the situation. Some of these commenters also noted that such public
involvement in early restoration planning could delay the early start
on restoration actions that may be possible. One commenter noted that
delays caused by public involvement might increase the damages owed by
the RP(s).
Response: NOAA emphasizes that the overall goal of this proposed
damage assessment rule is to get from a discharge to the recovery of
affected natural resources and services as quickly as possible.
Therefore, unnecessary delays should be avoided wherever possible.
However, as discussed elsewhere in this preamble, public involvement
does not necessarily mean holding a large public meeting for each and
every discharge. The same principle works in restoration planning and
implementation. The trustee(s) is not serving the public if his actions
slow down the healing process. However, the RP(s) is responsible for
all reasonable damages caused by the discharge. When public natural
resources are affected, it is reasonably foreseeable that the
trustee(s) must comply with certain administrative processes and may
have the duty to inform and involve members of the public during that
time.
``Litigation Concerns''
Comment: One commenter noted that public comment specifically on
the issue of the economic damages would strengthen those figures and
increase the likelihood of successful recovery. However, another
commenter noted that the trustee(s) needs free and open discussion of
options with staff, outside of the public domain, as part of litigation
approach. Another commenter noted that putting out the proposed
restoration plan that would show proposed acquisition of land as an
approach would cause a sharp increase in the price of that land.
Response: NOAA recognizes that public review and comment on
various aspects of a study plan is a desirable goal. However, public
information laws, such as the Freedom of Information Act (FOIA), take
note of the fact that there is an exception to public review where a
free discussion of litigation strategies or other sensitive issues are
necessary. Also, any descriptions of land to be acquired as part of a
restoration plan should remain general so that the prices would not be
elevated.
``Limits on Public Involvement''
Comment: Several commenters noted that public involvement should
be limited to the Congressional intent as shown by section 1006(c)(5)
of OPA, which calls for opportunity for public involvement in
restoration planning.
Response: NOAA notes that the section 1006(c)(5) requirement for
public involvement in restoration planning is read as a minimum
requirement in OPA. The clear Congressional intent revealed in OPA and
its legislative history is that the public be involved in a meaningful
way. Therefore, NOAA hopes to ensure that goal is met.
``Public Involvement in Restoration Planning''
Comment: Most of the commenters agreed that public involvement is
necessary in the development of restoration plans.
Response: NOAA agrees that the development of restoration plans
should be open to public involvement as noted above.
``Rebuttable Presumption''
Comment: One commenter noted that an assessment based upon a
restoration plan that had not been developed with public review and
comment would not receive the rebuttable presumption.
Response: NOAA points out that OPA specifically requires public
review and comment on restoration plans. As noted earlier, however,
full restoration planning for hundreds of small discharges may not be
possible for all trustees. In such cases, the trustee(s) should
consider developing regional or local plans that would go through the
public review and comment process, receive the rebuttable presumption,
and be ready to implement when funding is available.
``Citizen Oversight Committees (COC)''
``COC: Advantages''
Comment: Many of the commenters noted that allowing
representatives of local groups to either attend trustee meetings to
monitor the assessment process or participate in oversight committees
will further the goal of meaningful public participation. One commenter
pointed out that such participation is needed to gain a full
understanding of effects on the affected community. Another commenter
stated that such public involvement is crucial if jointly conducted,
phased assessments are permitted. Another commenter suggested that
assessment groups or teams should give adequate notice to and be open
for public participation.
Response: NOAA agrees with the goal of involving the public and
keeping the public informed of progress of the assessment and
restoration of its natural resources. It is also expected that such
public participation will add to the information pool available to the
trustee(s). The point raised by the commenter that public involvement
is needed in joint RP-trustee assessments, is well taken. If such
efforts are to succeed, they must be conducted in the open. Finally,
NOAA agrees that the public must be aware of the opportunities for
involvement. Notice of meetings should be given in the manner most
appropriate for any particular assessment.
``COC: Disadvantages''
Comment: Several commenters argued that there is no need for such
groups since the trustee(s), the source of expertise in this area, is
the representative of the public. Others warned that such oversight
would impede the assessments, negotiations, and subsequent restoration
efforts, if for no other reason than the sheer numbers of persons
involved. Another commenter noted that this involvement would also
greatly add to the cost of the assessment and restoration.
Response: NOAA agrees that the resource management agencies do have
a wealth of expertise concerning their natural resources. Because no
trustee can be omniscient, agencies must remain open to new sources of
information. It is also unlikely that the process would be overwhelmed
by vast numbers of citizens wanting to participate. In most cases,
citizen or environmental groups represent the general views of the
community and serve as focal points for interaction. Any discharge that
invokes the personal interest of large numbers of people is clearly a
discharge that needs public involvement. NOAA does not wish to suggest
that these groups are being given the responsibility of running the
assessment/restoration process. NOAA does not read the term
``oversight'' to mean ``control.'' The trustee(s), by law, cannot give
up their trust duties. Therefore, the citizen groups cannot have
decision or arbitration authority. The term ``oversight'' in this
context simply means participation, not authority. Public participation
in this rule does not include ``oversight'' of management functions.
Although the costs of preparation of materials and distribution of such
materials would be considered part of the regular costs of an
assessment, the costs borne by citizens interested in attending
meetings or other citizen-borne costs of participation would not be
included in the assessment costs.
``COC: Makeup of COC's''
Comment: Several commenters noted that Citizen Oversight Committees
(COCs) should involve groups with environmental expertise in a
systematic way to increase the collective knowledge available during an
assessment. Another commenter suggested that a group similar to the
National Science Foundation or the National Academy of Sciences could
help minimize decisions and associated expenditures founded on poor
science or made for political reasons.
Response: NOAA notes that the makeup of any group representing the
public interest is highly incident-specific. The types of interest
groups or organizations noted in these comments are good examples of
groups that are likely to contribute the most to an assessment and
restoration.
``COC: Optional''
Comment: Several commenters noted that, if NOAA decides to include
a provision for a COC in the rule, this involvement should be strictly
optional at the discretion of the trustee(s). Several other commenters,
however, pointed out that, even if such provisions were optional,
groups would come to see this participation as an entitlement and would
demand it in each case.
Response: NOAA notes that the fear of some kind of ``entitlement''
specter should not prevent the trustee(s) from carrying out their
duties in the most appropriate manner for a particular discharge. This
proposed rule strongly encourages public involvement in assessments,
but leaves the timing, scope, and extent of such participation to the
judgment of the trustee(s). No national rule could possibly cover all
scenarios that might arise due to a discharge of oil; therefore, this
proposed rule must leave the trustee(s) with the flexibility to tailor
the process to fit the discharge.
VI. Participation of the Responsible Party
While liability and responsibility of the RP(s) for removal and/or
response activities are addressed clearly in OPA, little guidance is
given in either the statutory language or the legislative history
concerning the role of the RP(s) in the assessment process.
The degree of involvement of the RP(s) in the assessment process
will likely have a direct bearing on several aspects of the assessment.
For instance, active and early involvement of a cooperative RP(s) may
eliminate some of the problems trustees have encountered immediately
following a discharge of oil, such as the lack of funding, personnel
and equipment. In addition, a joint trustee/RP assessment may be more
cost effective and avoid duplicate studies by the trustee(s) and RP(s).
After reviewing and analyzing all comments concerning this issue,
NOAA's proposed rule strongly encourages RP involvement but leaves the
ultimate decision with the trustee(s) and RP(s) on a case-by-case
basis. The reasons were many, varied, and well argued by the numerous
commenters that expressed an opinion on this issue ranging from full to
no involvement, but it is impossible to dictate through this proposed
rule a one-size-fits-all solution for all discharges. The trustee(s) is
entrusted by Congress in section 1006 of OPA to assess natural resource
damages and develop and implement restoration plans. While active RP
involvement is the preferred method of conducting assessments, the
trustee(s) can ill afford to delay assessment activities while
attempting to entice RP involvement.
In determining the nature of RP involvement in the assessment/
restoration process, the trustee(s) and RP(s) have many opportunities
for cooperative participation, from preassessment activities to
implementation of restoration activities.
Preassessment Phase: As noted in this preamble and in subpart B of
the proposed rule, this step requires the collection of preliminary
data concerning the circumstances of the discharge, characteristics of
the oil, nature of the receiving environment, and characteristics of
the affected natural resources and services potential for further
injury to natural resources. Based upon this information, the
trustee(s) will determine which, if any damage assessment procedure to
proceed. While there is no specific time limit for the Preassessment
Phase, the effectiveness of this phase will depend on how early the
trustee(s) is able to gather that information. Since time is critical,
the proposed rule does not require that the trustee(s) invite the RP(s)
to participate in this phase. It is the option of the trustee(s)
whether to invite the RP(s) to participate and enter into an agreement
to gather Preassessment Phase information. In making this
determination, the trustee(s) should consider, but not be limited to,
the following factors: whether the RP(s) has been identified; the
willingness of the RP(s) to participate in the preassessment; the
willingness of the RP(s) to pay preassessment activities; and the
ability of the trustee(s) to conduct the Preassessment Phase in a
timely and cost-effective manner.
The completion of the Preassessment Phase includes written
notification to the identified RP(s), by the trustee(s) of the decision
to proceed with further damage assessment procedures. The proposed rule
provides that the trustee(s) must invite the RP(s) to participate in
the assessment process, if it is reasonably practicable to do so. The
RP(s) has ten calendar days in which to respond. If the response is
positive, the trustee(s) and RP(s) begin negotiations as soon as
practicable on an agreement detailing the RP(s) involvement. Should the
trustee(s) determine that the RP(s) is no longer participating in good
faith, but is using participation as an opportunity to obstruct the
assessment, the trustee(s) may terminate the agreement. The trustee(s)
may proceed with necessary assessment actions such as the assessment/
restoration plan and necessary data collection during those
negotiations, although the initial plan may have to be modified before
public review, once RP involvement is established. It is expected that
all parties will negotiate in good faith, realizing that a cooperative
assessment will likely result in the implementation of assessment and
the resultant restoration activities as soon as possible. If, however,
some type of agreement (including a phased joint agreement discussed
later or an agreement to agree in the future) cannot be reached within
45 calendar days, the trustee(s) may terminate the negotiations.
Phased Joint Assessments: To encourage cooperation between the
trustee(s) and the RP(s), the proposed rule authorizes the trustee(s)
and the RP(s) to enter into a phased joint assessment administrative
procedure for conducting assessments. A phased approach to conducting
joint assessments is authorized due to the apparent reluctance of the
trustee(s) and RP(s) to agree to work together before the actual
assessment process begins. The phased approach may allow a working
relationship to develop between the trustee(s) and RP(s) yet allow
maximum freedom to both parties should the joint process be determined
unworkable.
The assessment process may be divided into distinct phases and
components, and the RP(s) may be invited to participate in the various
phases and components. Prior to the beginning of each phase or
component, the RP(s) and trustee(s) may enter into an enforceable
agreement to conduct that particular phase or component. The
responsibilities of each party, including financial contributions by
the RP(s), will be identified in the agreement with provisions for
termination of the agreement and for nonperformance. The agreement
should identify who should collect the data and under what guidelines.
The agreement should also include provisions for actual possession and
ownership of data jointly collected and for funding. In addition, the
parties could agree who will analyze the data, and what criteria will
be used in the analysis. The use of oversight groups or public
involvement might also be addressed.
While it may be most expedient for the trustee(s) and RP(s) to use
internal personnel for data collection and analysis, such use may not
be possible. Should both parties not be able to agree upon the use of
joint internal personnel, the data gathering and/or preliminary
analysis of the data may be contracted out to an agreed upon third
party. Regardless of who conducts the assessment activities, the
trustee(s) maintains management and control of all such activities.
Once each phase or component is complete, the data collected and
analyzed will be provided in the administrative record, and will
eventually become part of the Report of Assessment.
The key incentive to a phased joint assessment is the agreement
that the trustee(s) and RP(s) are limited to the use of the jointly
collected data for that phase or component, even though they might not
enter into an agreement for the next phase or component. For example,
the trustee(s) and RP(s) may enter into an agreement to jointly collect
data for all injury determination studies. Once the data are collected,
the parties decide to forgo any other joint ventures. However, both
parties are barred from introducing collateral data collected outside
the assessment process for the injury determination studies covered by
the agreement. Each may conduct his own analysis of that existing data,
but the injury determination data collected outside the joint venture
could not be entered in the administrative record of the assessment,
and thus remain outside the assessment process and any judicial
determination under OPA. The purpose of the bar on collateral data is
to encourage cooperative assessments instead of the trustee(s) and
RP(s) conducting separate, duplicative assessments. Where a joint phase
or component is completed, it is a waste of time and money for either
party to repeat the study. To make this provision clear and enforceable
to all parties and equally enforceable, the regulations suggest that
the bar be spelled out in the enforceable agreement as well as provided
for in Sec. 990.17 of the proposed rule.
Assessment Phase
Assessment Component: The agreement to conduct portions of the
assessment component of the Assessment Phase should be as specific as
possible, with trustee and RP activities identified. NOAA suggests that
the following steps of the assessment component be considered for joint
agreements for Expedited and Comprehensive Damage Assessments: Injury
data collection and/or analysis of injury determination data to
quantify loss of natural resources' services. When practicable, the
trustee(s) and RP(s) are encouraged to combine data collection and
analysis into one agreement, resulting in a more efficient assessment
process.
Restoration Component: As with the rest of the assessment process,
the degree of participation of the RP(s) in developing the restoration
component is discretionary with the trustee(s) and RP(s). However, the
use of the knowledge and expertise of many RPs could be useful to the
trustee(s) and is encouraged. The proposed rule provides that the
trustee(s) must invite the participation of the RP(s) in the
restoration planning process if the RP(s) has participated in the
earlier assessment activities to date. In determining whether to invite
the RP(s) into the restoration process, the trustee(s) should consider,
but not be limited to, the following factors: (1) The willingness of
the RP(s) to participate and the reasons the RP(s) was not involved in
the earlier assessment activities (an uncooperative RP may have delayed
the earlier assessment process, or was unable to participate, but is
able to do so in the restoration effort; if the RP(s) has already
indicated no interest, it would be a waste of time to invite him to
join in the process); (2) the ability, i.e., knowledge, expertise,
unique natural resources, etc., of the RP(s) to participate in the
restoration process; and (3) the willingness of the RP(s) to pay for
restoration activities and for trustee costs.
If the RP(s) is involved in restoration, the trustee(s) and the
RP(s) shall develop a joint agreement describing the specific
responsibilities of the RP(s) and trustee(s). The agreement should
cover the activities of the RP(s) related to determination and
implementation of restoration activities. Since it is likely a range of
possible restoration activities and costs will be identified early in
the injury determination component, the development of a restoration
component of the DARP is actually initiated in the Assessment Phase.
Some RPs may want to actively assist in developing and implementing a
restoration plan. Others may prefer to pay the damages and leave the
restoration activities to the trustee(s). Again, agreements should
include specific responsibilities of the trustee(s) and RP(s). Such
agreements could cover the determination and implementation of
restoration alternatives.
Management Structure: NOAA does not propose a specific management
structure in order to conduct either a trustee or joint trustee-RP
assessment. However, NOAA recommends that the trustee(s) establish
committees or teams to manage the assessments. The core members of
these committees may already be selected in the prespill plans. As
discussed earlier, the committees should have a lead administrative
trustee and include representatives from all affected trustee agencies
and provide opportunities, ad hoc, for involvement from response
agencies and other interested parties, as deemed necessary by the
trustee(s).
Other Party Involvement: A great number of commenters indicated a
real concern that RP involvement will result in less than complete
recoveries through less than comprehensive assessments. To ensure that
the assessment and recoveries are adequate, the proposed rule
authorizes and encourages the trustee(s) to provide for ``outside''
review of assessment/restoration plans by the scientific and economic
communities. Comments as a result of the ``peer review process'' will
be a part of the administrative record. Peer reviewers will be selected
by the RP(s) and trustee(s). The trustee(s) should consult local and/or
national interest groups, scientific agencies, and universities for
suggestions of appropriate reviewers.
Also, the joint-management team will keep the public informed of
the progress of the assessment/restoration process and will allow
public review and comment of the on-going assessment and restoration
plans. In addition, at the discretion of the trustee(s),
representatives of local interested groups may be invited to attend
assessment management meetings to monitor the decisionmaking process.
Participation of the Responsible Party
Response to Comments
Comment: Some commenters recommended that all prespill planning
efforts be channeled through the development of the Area Contingency
Plans under section 4202 of OPA.
Response: NOAA agrees. When practicable, the trustee(s) and
potential RP(s) should use existing planning mechanisms to coordinate
their efforts. To do otherwise would be inefficient and duplicative.
Industry should be strongly encouraged to participate in and/or
coordinate with the technical working groups of the Area Committees
(including appropriate trustees) in the development and update of Area
Contingency Plans. Such plans identify and rank sensitive environments
and define appropriate protective strategies and removal technologies.
In addition, such prespill meetings with industry would allow the
trustee(s) to clarify the damage assessment process. Where prespill
planning is appropriate, the trustee(s) is still encouraged to involve
potential RP(s) in prespill planning and identification of potential
natural resources at risk.
RP(s) Involvement in the Assessment Process (General): While the
comments were very numerous and often very detailed on this subject,
they largely fell into two categories: (1) No RP involvement vs.
unlimited RP involvement and (2) RP involvement is possible under some
circumstances, with appropriate trustee oversight. The comments and
responses for this section follow these general categories.
Comment: Commenters indicated a wide range of views on this issue,
from unlimited RP involvement to no RP involvement, except to pay the
required damages. In this vein, many commenters stated that the RP(s)
will approach the damage assessment process with the goal of minimizing
the injury and resulting damage assessment. A multiple trustee
conducted assessment is difficult enough, but allowing the RP(s) into
the process could disrupt the assessment. Others indicated further
potential problems, claiming that allowing the RP(s) in the assessment
process is tantamount to allowing the RP(s) to determine its own
damages. In any assessment, it is in the public's interest to conduct a
full and fair assessment. It is in the interest of the RP to show
little injury so that the damages will be lessened. Others were
concerned that consultation and involvement of the RP in the assessment
process may seriously prejudice the trustees' ability to recover
damages, particularly through negotiations. Any involvement of the RP
should require unanimous approval of the trustees.
Many commenters expressed the opposite view, claiming that the
opportunity for RP involvement in a damage assessment is a legal
necessity as well as fortuitous. Since the damage assessment process
determines the amount of damages the RP will pay, it would be unfair to
exclude the RP from the process. In addition, the RP would serve as a
control on ``state and federal bureaucrats,'' ensuring that assessments
would be cost-effective. At least one commenter indicated that
assessments conducted without providing the RP the opportunity to
participate should not be awarded the force and effect of a rebuttable
presumption. Others indicated that while the RP's interests may be
different than those of the trustees, involvement of the RP will likely
encourage the RP to pay the damages rather than challenge the
assessment in court. Other possible advantages of RP involvement
included: Elimination of costly duplication of studies; ensuring that
studies/investigations are planned to answer pertinent questions; and
providing another source of funding for studies that must be conducted
in a timely manner. RPs are fully aware of the legal responsibilities
under OPA and are quite willing to cooperate with the trustee(s) to
resolve them in a fair and timely fashion. Others justified substantial
and preferential involvement of the RP based upon the ruling in Ohio v.
Department of the Interior, which upheld DOI's decision to allow
greater RP participation than the public as a whole. Other commenters
insisted that any participation by the RP is at the discretion of the
RP and/or the trustee(s).
Other commenters stressed that cooperation must work both ways. The
trustee(s) should also be willing to cooperate with the RP. The
commenters noted that it can be more expeditious for the RP to fund the
work, with oversight or ``audit'' by the trustee(s). Some RPs (either
foreign or domestic based) may have neither the motivation nor the
resources for close cooperation with the trustee(s). Such RPs should
not be penalized for not participating to the fullest possible extent.
Some suggested that public perception of the RP conducting the
assessment might be helped by agreeing in advance upon a list of ``pre-
approved'' consultants to assist in ``peer review'' and/or to carry out
the actual studies. The use of assessment ``over-sight'' groups
consisting of RPs, scientists, environmental groups and the public was
also suggested. One commenter suggested that a generic agreement be
drafted by representatives of trustees and RP and be provided as a
model agreement for use in the event of an actual discharge. This
agreement would identify the activities of the RP and trustees leaving
little need for additional negotiations for specific discharges. This
model agreement would have gone through a public review process and the
roles of the respective parties would be already identified, thereby
reducing the time needed to negotiate specific activities and ensuring
that the public's concerns were addressed.
Response: Many of the concerns over RP involvement represent actual
discharge scenarios where involvement of the RP(s) was difficult and
frustrating to the trustee(s). On the other hand, the advantages of a
cooperative RP in an assessment have resulted in smooth assessments and
a focus on the environment, not the courthouse. It is virtually
impossible for the proposed rule to dictate the level of involvement of
the RPs in every possible assessment. Each discharge will present a
different set of circumstances, with different RPs and trustees. As
explained elsewhere in the preamble the eventual degree of involvement
of the RP(s) is at the discretion of all the trustees involved in the
assessment and RP(s). On the whole, cooperative involvement of the
RP(s) will likely provide many benefits to the assessment process, but
currently trustees and RPs have little experience in conducting
cooperative assessments. The proposed rule reflects this lack of
experience, and strongly encourages that the trustee(s) first look to a
cooperative assessment, even if such cooperation can only be fostered
through the use of a series of joint agreements. However, OPA does not
necessitate the loss of the rebuttable presumption due to lack of RP
involvement and neither does the proposed rule. Since participation of
the RP is optional on the part of the RP(s) and trustee(s), those
opting not to participate are not penalized. The assessment remains
under the direction of the trustee(s).
NOAA agrees with the suggestion that a model agreement would be
beneficial and provides a sample of such an agreement for comment in
Appendix B. Such an agreement, however, would not be mandatory. NOAA
perceives that trustees and potential RPs are on the verge of
conducting a new generation of cooperative assessments, but they need
time to work out the details and provide for adequate checks in the
process. The proposed rule provides for that period of testing and
adjustment.
A large number of commenters also expressed the opinion that RP
involvement is helpful in some phases of the assessment if conducted
under the oversight of the trustee(s). However, there was little
agreement over which phases of an assessment might be appropriate for
RP involvement and the appropriate degree of oversight. Various phases
of the assessment and respective comments are discussed below.
Comment: Some commenters were strongly opposed to allowing the
RP(s) more access to the assessment process than the public in general.
Others indicated that additional access was a right accorded the RP(s),
because of the financial stake of the RP(s). One commenter contended
that the RP could serve in an ``advisory'' role to avoid duplication of
effort and studies. Another commenter noted that, although the RP has
the constitutional right to participate in the assessment,
participation is discretionary on the part of the RP and cannot be
mandatory.
Response: The proposed rule does provide the RP(s) with more access
to the assessment process than the general public. This is consistent
with other provisions in connection with oil discharges, i.e., the
response and cleanup. The greater access is not because of the
financial stake of the RP(s), it is NOAA's position that a cooperative
RP can assist in restoring the environment in as short a time as
possible and, like the cleanup, may be able to provide services,
funding and/or personnel not available to the trustee(s) in either a
cooperative or advisory role. However, the trustee(s) is required to
keep the public informed of the participation of the RP(s) and provide
an opportunity for meaningful public participation, not only regarding
the involvement of the RP(s), but for the entire assessment process.
Also the RP(s) does have the right to refuse participation.
``Preassessment''
Comment: Concerning the preassessment, several commenters indicated
that since preassessment decisions need to be made quickly, involvement
of the RP would likely delay the process. Involving the RP in the
preassessment may prevent the trustee(s) from fully exploring all the
options for the assessment and resulting restoration activities. Others
indicated that the RP should be invited to participate from the onset
of the discharge, since it is possible that the RP can provide data
necessary for use in the preassessment to determine the nature and
extent of subsequent assessment activities. A cooperative preassessment
would likely foster a cooperative assessment and possible early
settlement of claims. In addition, early RP involvement does not
prejudice public participation, since the assessment/restoration plan
will be available for public review.
Response: The proposed rule encourages the trustee(s) to involve
known RPs in the Preassessment Phase. However, because of the
constraints in the Preassessment Phase, the proposed rule does not
require the trustee(s) to invite the RP(s) into the preassessment. The
various affected trustee agencies must focus the initial efforts into
coordinating their early efforts and coordinating with the OSC agency.
Efforts to involve the RP(s) should not detract from this focus.
``Assessment/Restoration''
Comment: Commenters who agreed with the general principle of RP
involvement indicated that the assessment and restoration components of
the assessment are the most appropriate for such involvement. However,
the nature and extent of this involvement were widely contested.
Concerning the initial invitation and acceptance, many commenters
indicated that the thirty-day waiting period after Notice of Intent To
Perform An Assessment provided in 43 CFR part 11 is not practicable for
discharges of oil and some recommended a ten-calendar day period for
response from the RP. Considering the degree of involvement, some
commenters indicated that the RP can provide very useful information
and financial resources for planning the assessment/restoration that
might be unavailable to the trustees. An assessment/restoration plan
developed with the full involvement of the RP will likely be cost
effective and efficient. In addition, the RP would likely be more
willing to participate in the assessment and restoration activities if
involved in the planning process. One commenter noted that
participation by the RP should also allow for keeping the RP informed
as to how monies recovered are spent in restoration. Some commenters
recommended the RP's role be similar to response actions, where the RP
could develop and submit plans to assess natural resource damages to
the trustee(s) for their approval. Once approved, the RP could
implement the plans under the direction and monitoring of the
trustee(s). One commenter recommended that the degree (size, duration,
etc.,) of the discharge is immaterial to the involvement of the RP in
the assessment process. Another commenter asked for clarification of
what circumstances might justify denial of RP participation.
Others recommended a more limited role for the RP, i.e., the up-
front funding or the conduct of actual assessment and restoration
activities planned and approved by the trustee(s). However, such
involvement must be tempered by the realization that under OPA the
trustee(s) is ultimately and continuously responsible for all
assessment/restoration activities, regardless of who pays for and/or
conducts them. Some commenters indicated that OPA requires that the
trustee(s) develop and implement a restoration plan, and any
involvement of the RP contravenes this statutory mandate. One commenter
noted that a ``requirement'' to invite RP participation contradicts the
statement in the proposed rule that such participation is at the
discretion of the trustee.
Response: The nature of these comments and past experience with oil
discharges indicate to NOAA the wide range of concern as well as
support concerning RP involvement in any natural resource damage
assessment. In some instances, extensive participation of the RP(s) has
led to an early settlement of claims. In other assessments, RP
involvement has, from the trustee's point of view, resulted in undue
delays and a laborious process. The proposed rule follows NOAA's
general philosophy of active involvement of the RP(s), but leaves the
degree of that involvement up to the trustee(s), since it is the
trustee(s) who is ultimately responsible for the conduct of the
assessment/restoration process. The trustee(s) is encouraged to invite
the known RPs to be involved in the assessment/restoration process. If
not contacted during the Preassessment Phase, the trustee(s) should
contact the known RPs as soon as practicable following the
determination to proceed with some form of assessment procedure. The
RP(s) should indicate a willingness to participate within ten days of
receipt of the invitation. The trustee(s) and interested RP(s) should
begin negotiations concerning the degree of involvement as soon as
possible following that ten-day period.
Incentives for the trustee(s) to involve the RP(s) are numerous,
including a less litigious atmosphere, possible immediate funding for
assessment activities, and additional data and personnel support. The
RP(s) should also recognize the advantages of involvement, including
lower costs since dual assessments may be avoided. The RP(s) can also
often provide considerable expertise in the effects of oil upon natural
resources and benefit from the public perception that there is a real
interest by the RP(s) in restoring the environment.
Both parties should negotiate in good faith, with restoration of
the environment as the ultimate goal. The participation of the RP(s)
throughout the entire assessment/restoration process need not be
established, and parties are free to negotiate a series of agreements
as the assessment/restoration continues. The involvement of the RP(s)
should be clearly identified in the DARP, so that appropriate review
and comment will be accorded. All assessment/restoration activities
must remain under the direction and responsibility of the trustee(s),
although the trustee(s) may allow the RP(s) to conduct all or part of
an assessment. As with all restoration components and assessment
components under EDA and CDA, appropriate peer review must be provided
to ensure that the components are adequate. In addition, the trustee(s)
is reminded that the ultimate responsibility and results of the damage
assessment rest with the trustee(s).
While the size of the discharge may be immaterial to the basic
decision of RP involvement, it is relevant to the degree of RP
involvement. Discharges appropriate for the compensation table or the
Type A model require minimal assessment activities; therefore possible
RP activity would be limited to restoration planning and
implementation, unless the RP(s) opted to finance and possibly conduct
either an EDA or CDA.
``Phased Joint Assessments''
Comments: During the workshops and the March 13, 1992, ANPRM, NOAA
presented the concept of a ``phased joint assessment,'' allowing the
trustee(s) and RP(s) to jointly conduct certain phases of an
assessment. Commenters indicated that, for joint work, industry would
need some assurance that the damages amount determined by the process
is reasonable and supportable. Others indicated that such agreements
should be designed to avoid the conduct of dual assessments and provide
provisions for nonperformance. Some commenters indicated that
nonperformance provisions should only apply to RPs and not trustees,
since the financial obligations for the assessment always rest with the
RP.
Others suggested a dispute resolution mechanism involving impartial
third parties. At least one commenter stressed that it must be
absolutely clear that completion of one phase indicates no obligation
to proceed with another phase. Such agreements would give the RP(s) the
greatest incentive to participate in and fund the assessment work, and
still allow the trustee(s) to ensure that the assessment is carried out
in accordance with OPA. Some commenters indicated that the joint
assessment process may work well for data collection and analysis or
for determining the extent of injury to the natural resources. However,
some thought this cooperation would be unacceptable in the economic
valuation portion of the assessment process where the actual amount of
damages is determined based upon that injury because of the
controversial nature of such damages in the RP community.
Response: The proposed rule authorizes the trustee(s) and RP(s) to
enter into enforceable agreements in order to conduct any phase or
component of a natural resource damage assessment. The purpose of these
agreements is to foster cooperation when practicable and provide
incentives to both the trustee(s) and RP(s) to meet their respective
obligations. The phased joint assessments are not mandatory and may
cover any phase or component in the assessment process. The completion
of one agreement does not obligate either the trustee(s) or the RP(s)
to any further joint activities. Since these
FR Doc. 94-225 Natural Resource Damage Assessments
agreements can cover
distinct phases, NOAA does not deem it necessary for third party
dispute resolution, although non-binding mediation has been suggested.
If disputes could not be settled through regular trustee and RP
channels, parties could agree to terminate the agreement and not
participate in any further joint activities.
These agreements seem most appropriate for the conduct of
assessment/restoration activities, but are certainly allowed for
preassessment activities. The trustee(s) and RP(s) will most likely use
these agreements for the EDA, since a cooperative RP is important to
that procedure, and there is a limited suite of studies upon which
agreements could be negotiated and finalized in a reasonable amount of
time. However, these types of agreements may also be applicable to a
CDA, where the trustee(s) and RP(s) wish to eliminate dual assessment
studies.
NOAA disagrees with the general notion that nonperformance
provisions should only apply to RPs. Trustee agencies should also meet
their agreed upon duties.
VII. Compliance/Conflict With Applicable Laws
Section 990.18 pertains to the relationship of this proposed rule
to other laws. Section 990.18(a) requires that the trustee(s) comply
with all human worker health and safety requirements, as specified in
the NCP. In many cases, the conduct of an assessment will require
extensive field work during an actual discharge and/or cleanup. The
trustee(s) is responsible for ensuring that the assessments are
conducted in accordance with those applicable laws.
Section 990.18(b) provides that other environmental and procedural
laws also apply to the assessment/restoration process. This proposed
rule mentions some of the more well-known laws, but the indicated list
is for the purpose of example and is not inclusive.
Subsection (c) mirrors the OPA provision that OPA does not preempt
state oil spill laws and related regulations, thus allowing for the
potential for possible duplicative and conflicting claims and
recoveries. Since section 1018 of OPA does not prevent states from
establishing additional liability as a result of a discharge of oil,
this proposed rule cannot require state trustees to adopt or follow the
procedures promulgated by NOAA in lieu of other state laws or damage
assessment schemes. However, since OPA also prohibits the double
recovery of natural resource damages, all trustees will be encouraged
to conduct joint assessments and present a total unified claim for
damages. Such claims should be deemed sufficient by the trustees to
restore the injured natural resources and/or services and for
diminution in values until restoration is complete.
As discussed in the ``Use of Sums Recovered'' section of this
proposed rule, any monies received under OPA must be used to restore,
rehabilitate, replace, or acquire the equivalent of the affected
natural resources and/or services. In this proposed rule, NOAA
encourages the trustee(s) to concentrate upon ``fixing the resources''
and not be distracted by ill-fated ventures of attempting to divide the
natural resources and pursue individual claims.
The unified trustee approach will also encourage participation from
the RP(s), instead of a multi-assessment process that would encourage
the RP(s) to pursue litigation in order to lessen the number of claims.
In addition, unified trustees will allow the pooling of resources for a
more effective assessment and, if necessary, litigation.
While NOAA cannot require the coordination and cooperation of all
trustees, there are some incentives for such cooperation. For example,
state trustees should be encouraged to coordinate with federal
trustees, since section 7 of E.O. 12777, 56 FR 54757 (October 22,
1991), requires that monies from the Fund for the ``initiation of
assessments'' are provided to the federal trustees. The federal
trustees may then distribute such monies to other trustees.
As discussed in ``Trustee Coordination'' and ``Prespill Planning,''
many of these potential conflicts could be settled in advance of an
actual discharge.
Response to Comments
Compliance With Applicable Laws and Statutes
``Double Recovery''
Comment: Many commenters were concerned that since OPA does not
preempt state laws, the trustee(s) would pursue claims under both state
law and OPA, thereby using conflicting methodologies and enhancing the
possibility of double recovery. Some suggested that the NOAA
regulations should preclude recovery under OPA if damages were being
pursued under state law. Others suggested that NOAA require that the
trustee(s) proceed under either state law or OPA and thereby waive all
claims under the statutory scheme not selected. Some commenters,
recognizing that NOAA could not direct the trustee(s) to forgo claims
under applicable state or federal statutes, suggested that early
coordination among the trustees be strongly encouraged to avoid
parallel assessment and claims procedures. Other commenters suggested
that double recovery can be avoided by the trustees conducting joint
assessments resulting in a single unified claim.
Response: NOAA agrees with the last commenters. Where Congress has
specifically declined to preempt state law in section 1018 of OPA,
NOAA's proposed rule cannot force trustees to limit their options under
applicable state or federal law. However, the regulations do encourage
early coordination among the trustees and, in accordance with section
1006(d)(3) of OPA, prohibit double recovery. Congress, in the
Conference Report accompanying OPA, encourages coordinated assessments
but does not preclude parallel assessments. (H. Con. Rep. No. 101-653,
101st Cong. 2d Sess. 109 (1990).) Accordingly, NOAA has determined that
the proposed rule cannot require joint trustee assessments. NOAA
emphasizes, however, that trustees must recognize the potential of
violating the double recovery prohibition if separate assessments are
conducted, and trustees are encouraged to avoid even the appearance of
double recovery by conducting a single joint assessment. In addition,
the possibility of multiple assessments will likely foster litigation
between the trustee(s) and the RP(s), thus delaying the assessment and
restoration process. NOAA also notes that the trustee(s) could address
many of these concerns through prespill planning and coordination.
Comment: While double recovery is clearly disallowed under OPA,
NOAA received comments that argued that natural resource damage
assessment regulations must guard against ``counting any resource for
two purposes.''
Response: Injury to a given natural resource and the attributable
cost of restoration, rehabilitation, replacement, or acquisition, can
only be assessed once for purposes of a compensable claim. However, OPA
also provides for recovery of diminution in value during the interval
between the discharge and complete restoration. Any number of ``service
flow'' costs, attributable to the natural resource injury, may be
appropriately claimed, under OPA rules. These compensable losses would
be additive, and would not constitute double recovery. Therefore, it
would be incorrect to suggest, as the comment cited above seems to,
that the OPA rules disallow counting any resource for two purposes.
Comment: One commenter expressed concern over the lack of
discussion of the applicability of the National Environmental Policy
Act (NEPA) to the assessment/restoration process.
Response: NOAA, in a change from the earlier notice, has determined
that NEPA does apply to the assessment/restoration actions conducted by
the trustee(s) following a discharge of oil. NEPA requirements should
not pose an additional burden in time and effort on the trustee(s), but
will be incorporated into the assessment/restoration process.
Comment: Some commenters pointed out that certain states are in the
process of completing, or have completed, procedures for conducting
natural resource damage assessments. Concerns were raised over the
possibility of conflicting procedures.
Response: NOAA fully recognizes that states have the authority to
develop their own assessment procedures under applicable state law.
NOAA has attempted to consider the different procedures in the course
of the rulemaking, but since many state statutes do not require that
the measure of damages be the same as OPA, many procedures are not
applicable to this rulemaking or OPA. When possible, NOAA has attempted
to be as consistent with the applicable state procedures. It is also
expected that the states currently contemplating developing assessment
procedures will attempt to be consistent with this proposed rule.
Comment: One commenter was concerned that a unified trustee
approach may not always be practical, particularly where the RP is also
a trustee.
Response: If those circumstances would arise, a unified approach
may still be possible, but different representatives of the trustee/RP
may need to be identified for either RP or trustee purposes. Of course,
there may be circumstances where parallel assessments would be
preferable until liability issues were settled with the RP/trustee.
Comment: Commenters also raised the issue of trustee conflicts over
ownership of a particular resource, and that the regulations should
attempt to clarify which resources should be appropriately claimed by
which trustee. Other commenters indicated the regulations should not
attempt to address the issue.
Response: NOAA agrees with the latter approach. Congress provided
very broad authority for federal, state, tribal and foreign trustees to
claim trusteeship over natural resources. Section 1006 of OPA states
that each trustee entity may exert trusteeship over natural resources
``belonging to, managed by, controlled by or appertaining to'' that
trustee entity. See 33 U.S.C. 2706(a). Additionally, many natural
resources fall within the trusteeship of two or more trustees. For
example, a salmon spends part of its life in federal waters, and part
in state waters. Further, a tribe may also have certain rights over the
salmon. Thus, rather than waste time and resources on negotiations and
litigation in allocating natural resources into federal, state, tribal,
and possible foreign categories, NOAA encourages the trustees to
conduct unified assessments, complete with restoration plans that
address the affected natural resources as a whole and not as a trustee-
specific piece-meal process. Trustees are encouraged to remember that
the purpose of the OPA assessment/restoration process is to restore
affected natural resources and/or services in an efficient and orderly
manner. Arguments over such things as the ownership of a duck merely
delay this process and, from the duck's point of view, are immaterial.
As mentioned earlier, trustee prespill planning and coordination could
alleviate this concern.
VIII. Review of Regulations
Although OPA does not contain a specific provision for the update
of this proposed rule, NOAA strongly believes that the proposed rule
must be reviewed on a regular basis to keep the procedures current with
new developments. Therefore, NOAA is recommends that this proposed rule
be reviewed and revised as appropriate at least every five years.
Preassessment Phase
Subpart B Preamble
General
Purpose/Scope
Natural resource damage assessment begins with the Preassessment
Phase. The Preassessment Phase provides guidance to the natural
resource trustee(s) for early action in the case of a discharge of oil
through a two step process: (1) Preassessment Determination; and (2)
Damage Assessment Determination. The first step or Preassessment
Determination requires a decision by the trustee(s) to continue with
the Preassessment Phase. Once preassessment is justified, the
trustee(s) proceeds to the Damage Assessment Determination. In this
second step, the trustee(s) decides which damage assessment procedures
to undertake, if any. The trustee(s) may conduct limited data
collection and analysis during these steps. The Preassessment Phase
also identifies the conditions for notification, coordination,
estimation of assessment costs, reporting, and emergency restoration.
Additional guidance on conducting preassessment can be found in the
Preassessment Phase Guidance Document. Michel, J., and E. Reinharz.
1993. Preassessment Phase Guidance Document. Research Planning Inc.,
Columbia, SC & NOAA-Damage Assessment Regulations Team, Washington, DC.
Notification: A natural resource damage assessment begins with
notification of a discharge of oil. Notification should be consistent
with the NCP. According to the NCP, the OSC or lead response agency
generally provides notification to the natural resource trustee(s) when
natural resources and/or services may be injured by a discharge of oil.
If the trustee(s) learns of an unidentified or unreported discharge of
oil, the trustee(s) must report that discharge to the appropriate
authority as designated in the NCP.
After learning of a discharge of oil, the trustee(s) should attempt
to notify all other known potential trustees of the possibility of a
natural resource damage assessment. Actions taken by the trustee(s)
must be consistent with the NCP and this subpart.
In addition, in accordance with section 1011 of OPA, the OSC or
lead response agency must consult with the affected trustee(s)
concerning removal actions.
Coordination: To the extent practicable, the Preassessment Phase
should be coordinated with the response agency(ies) (consistent with
the NCP), trustee(s), and possibly RP(s). Such coordination fosters
cooperation and early and effective implementation of the Preassessment
Phase. While the proposed rule encourages the trustee(s) to contact the
RP(s), the trustee(s) cannot afford to delay the Preassessment Phase
while negotiating with the RP(s). Although not required by this
proposed rule, prespill planning, as outlined in Sec. 990.16, will
facilitate the coordination of the Preassessment Phase and other
assessment/restoration actions.
Preassessment Phase Costs: Preassessment Phase costs include and
are recoverable only for trustee-approved activities that deal directly
with preassessment. Examples of Preassessment Phase costs include, but
are not limited to, costs necessary for: (1) Notification; (2)
coordination; (3) preassessment determination; (4) damage assessment
determination; (5) data collection and analysis; (6) report
preparation; and (7) emergency restoration. Excluded from preassessment
costs are strictly response-related actions, and costs that reflect
non-incident specific activities performed by the trustee(s) in the
management of natural resources and/or services. Preassessment costs
should be supported by appropriate and sufficient documentation.
Preassessment Phase Report: At the conclusion of the Preassessment
Phase, the trustee(s) should document: preassessment actions, estimated
costs related to those actions, and decisions whether to proceed with
preassessment and damage assessment/restoration actions. These
materials become the Preassessment Phase Report. The report should
provide sufficient information for use in the damage assessment/
restoration process, if necessary. If no additional actions are
undertaken, the Preassessment Phase Report becomes the Report of
Assessment. If the trustee(s) conducts further assessment/restoration
actions, the Preassessment Phase Report becomes part of the Report of
Assessment. If the trustee(s) decides to proceed with damage assessment
and restoration actions, the next step involves the development of a
DARP to guide the trustee(s).
Preassessment Phase Process
Preassessment Determination: Following notification of a discharge
of oil, the trustee(s) must conduct a Preassessment Determination to
decide whether to continue with the Preassessment Phase. The
determination is intended to be primarily a ``desktop'' exercise that
is based upon readily available information on the nature of the
discharge and environmental setting; namely the circumstances of the
discharge incident, oil characteristics, nature of the receiving
environment, and natural resources and/or services characteristics.
Using this information, the trustee(s) should determine if: (1) The
discharge of oil does not qualify for the exclusionary conditions as
set forth in section 1002(c) of OPA; (2) the trustee(s) has authority
under OPA to assert damage claims for natural resources and/or services
that may be adversely affected by the discharge of oil; and (3) there
is a reasonable probability that the trustee(s) can make a successful
damage claim based on the scientific, economic, and legal merits of the
case (i.e., potential for injury resulting from the discharge of oil
and successful and meaningful restoration and/or compensation).
If these conditions are met, the trustee(s) may proceed with
preassessment actions. If the trustee(s) determines that all three
conditions are not met, further preassessment activities should not be
conducted. Costs incurred to this point are not recoverable as damages
if the discharge meets the exclusionary conditions of section 1002(c)
of OPA. Otherwise, the costs up to this point are recoverable from the
RP(s) or Fund. Damage Assessment Determination: Following the decision
to proceed with the Preassessment Phase, the trustee(s) collects data
sufficient to decide which damage assessment procedures to conduct, if
any. The proposed rule provides that the trustee(s) should follow the
steps outlined below in Damage Assessment Determination:
(1) Characterize Discharge and Environmental Setting. Based on data
collection and analysis, the trustee(s) should first characterize the
discharge and environmental setting. These characterizations encompass
the following categories: circumstances of the discharge incident; oil
characteristics; nature of the receiving environment; and natural
resources and/or services characteristics. These activities are similar
to those undertaken in the Preassessment Determination, but are now
conducted in greater detail. Characterization of the discharge and
environmental setting will serve as the basis for the analysis of the
following steps.
(2) Determine Potential Exposure. Once the trustee(s) has
characterized the discharge and environmental setting, he should then
determine the potential for direct exposure from the discharge of oil.
The exposure pathway through which the oil may be transported should
also be determined. The potential for exposure may be based upon
fingerprinting or chemical analyses of the pathway, bioaccumulation
information, and transport/fate models. The trustee(s) is further
required to consider the indirect adverse effects in a natural resource
and/or service, such as the reduction or elimination of higher trophic
level resources not exposed to the discharge of oil which rely on
affected lower food chain resources exposed to the discharge of oil,
e.g. birds that feed on fish. In the absence of exposure, the
trustee(s) should determine impaired/diminished use of a natural
resource and/or service, such as a recreational beach threatened by a
discharge of oil. Such injury determinations are conducted in the
following step.
(3) Determine Potential Injury. Simultaneous with the above step,
the trustee(s) should determine those natural resources and/or services
that may be directly or indirectly injured from the discharge of oil.
Potential injury determination requires that the trustee(s) describe
the manner in which the physical, chemical, biological, or other
attributes of natural resources and/or services may be adversely
affected. Chemistry, toxicity and ecological effects information, and
effects models may be useful in determining potential injury to natural
resources and/or services. If there is no potential for injury,
preassessment actions should cease and no further damage assessment
procedures should be conducted.
(4) Characterize Potential Risk to Natural Resources and/or
Services. Characterizing risk requires that the trustee(s) evaluate the
potential cause-effect associations from the weight of evidence
developed in the previous steps as well as using best professional
judgment. A formalized risk assessment procedure may be used, but is
not required. Potential risk of injury to natural resources and/or
services may occur if it is likely to result from the discharge of oil
as defined in this proposed rule.
The correlation of field and laboratory information is the best
means of establishing potential risk. If such correlation is not
possible, potential risk may be determined relative to established
standards or criteria, health advisories, bans on the use or
consumption, or limits on harvesting applicable to the resource. Where
literature or regulatory information is insufficient, transport/fate/
effects models may provide evidence of possible links between the
discharged oil and predicted injuries.
Once the trustee(s) determines that there is the potential for risk
of injury to natural resources and/or services, the trustee(s) should
continue with the Damage Assessment Determination. If there is no
potential for risk, preassessment actions should cease and no further
damage assessment activities should be conducted.
(5) Estimate Extent of Injury to Natural Resources and/or Services.
The trustee(s) should estimate the current and future extent, i.e.,
magnitude and duration, of injury to natural resources and/or loss of
services after establishing potential risk to those resources and/or
services. This determination requires that the trustee(s) define the
spatial and temporal boundaries of the discharge and its effects on
natural resources and/or services. This information should be described
or mapped in such a way as to provide a sequential summary of the
discharge and associated effects.
Defining boundaries for potentially affected natural resources and/
or services requires comparison of affected to unaffected conditions
using baseline, reference, and/or control data. Current trends can be
based on measurements and/or model predictions of existing conditions.
Future trends can be based on model predictions of anticipated
conditions. Identification of boundaries makes it more likely that all
natural resources and/or services affected by the discharge of oil will
be included.
If estimates on the extent of injury to natural resources and/or
services can be determined in a cost-effective manner, the trustee(s)
should then proceed with the damage estimation using any of the
procedures in the proposed rule. If such estimates cannot be determined
in a cost-effective manner, the trustee(s) should cease preassessment
activities.
(6) Estimate Damages. Damage estimation should encompass: (1) the
environmental and/or economic values of a natural resource and/or
service potentially injured until recovery; (2) the likely cost of
restoration actions, if any; and (3) all assessment-related costs. As
with all estimates during the Preassessment Phase, such estimates are
strictly preliminary and subject to change as more information is
obtained.
If damage estimation is practicable, the trustee(s) should then
proceed with selecting the most appropriate damage assessment
procedure. However, if the Preassessment Phase results in a
determination that further data collection and analysis are not
necessary, no additional assessment actions are to be taken.
The proposed rule authorizes the trustee(s) and RP(s) to agree to
undertake limited injury determination studies to determine that no
significant injury to natural resources and/or services has resulted
from the discharge. While this may seem to be an unlikely scenario,
there may be circumstances when the trustee(s), possibly in conjunction
with the RP(s), would like to conduct additional studies for scientific
or public information purposes. Where no injury is identified, the
costs of these studies are not recoverable under this subpart and must
be borne by the trustee(s). Should such additional studies indicate
that significant and quantifiable injury has occurred to natural
resources and/or services, the trustee(s) may reinitiate the
Preassessment Phase, and the costs are then part of the assessment
costs.
Select Damage Assessment Procedures
Following the decision to continue damage assessment, the
trustee(s) is encouraged to use the damage assessment procedure that is
most appropriate to the discharge. To assist the trustee(s) in making
this decision, the proposed rule identifies general considerations and
specific factors when selecting the procedure(s). These proposed
considerations and factors are not rigid, nor does the proposed rule
require the trustee(s) to select a particular procedure for a
particular discharge. The trustee(s) shall generally consider the
following in determining which type of damage assessment approaches to
utilize: (1) The size and nature of the discharge and environmental
setting; (2) the extent to which the discharge of oil is expected to
cause injury to natural resources and/or services; (3) the expected
environmental and/or economic values provided by the affected natural
resources and/or services; (4) the extent to which response actions
carried out or planned will avoid further injury to natural resources
and/or services without further action; (5) the extent to which the
discharge meets the conditions for using the potential damage
assessment procedures; (6) the extent to which injury to natural
resources and/or services can be determined with available information
and quantification methods; (7) the extent to which restoration
alternatives can return injured natural resources and/or services to
their baseline or comparable conditions; (8) the extent to which
damages based on injury to natural resources and/or services can be
determined with available information and quantification methods; and
(9) whether the anticipated damage assessment procedure(s) is cost-
effective. Specific selection factors for each damage assessment
procedure are provided below.
The trustee(s), using his best professional judgment, has the
option to use any of the four procedures, singly or in combination, to
craft an assessment process that is most appropriate for the situation
at hand. The assessment designed by the trustee(s) would receive the
rebuttable presumption, so long as the procedures included in that
assessment are encompassed by this proposed rule and there is no double
recovery.
NOAA is specifically requesting comments on the advantages or
disadvantages of proposing such a range of procedures. It is hoped that
the trustee(s) can use this set of standard procedures in a beneficial
manner to craft an assessment that is most appropriate for the
particular discharge of concern.
Compensation Formulas: The estuarine/marine and inland waters
compensation formulas proposed are applicable to the vast majority of
discharges of oil. These compensation formulas are available for use by
the trustee(s) for relatively small discharges, particularly when
assessing discharges that occur in areas where it would be difficult or
very costly to ascertain precise environmental effects, e.g., small
discharges in open water or occurring in areas that are subject to
frequent environmental insults. Where the circumstances of the actual
discharge are determined by the trustee(s) to be far out of bounds of
the compensation formula, then the trustee(s) should use one of the
other assessment procedures.
The formulas assume various effects to natural resources likely to
occur as a result of a discharge of oil. These assumptions take into
account the amount and type of oil discharged and region and habitat
type in which the discharge occurs. This approach allows both a
national consistency and regional specificity. Also, the use of
dispersants cannot be factored in since there likely will be additional
effects in the water column as a result of using them. For the purposes
of the compensation formulas, residual and tidal currents are assumed
to be zero, the discharge is assumed to be instantaneous at the water
surface, seasonal temperatures and wind speed are ``set at average
values,'' as explained in volume I of the technical document, and wind
direction is controlled to avoid having the discharge move into a
different habitat. Also, the ranges of discharge sizes covered by the
formulas are: 10 gallons to <1,000 gallons; 1,000 gallons to <5,000
gallons; 5,000 gallons to <10,000 gallons; and 10,000 gallons to 50,000
gallons.
However, if there are significant differences between the
assumptions in the formulas and incident of concern, then the formulas
may not be appropriate for the discharge of concern. Finally, these
formulas allow an estimate of damages per gallon, taking into account
average restoration costs plus average lost direct use values pending
restoration. Passive use (nonuse) values are currently not included in
the formulas. Therefore, discharges under 50,000 gallons that are
likely to result in a significant loss in passive use values should be
assessed under another procedure.
The Type A model: When considering using the Type A model for an
assessment under OPA, the trustee(s) should consider several factors.
Basically, the Type A may be appropriate when the trustee(s) determines
that the compensation formulas of subpart D of this part alone are not
sufficient to estimate the injury and damages resulting from the
discharge, and that there is no other cost-effective procedure
available to estimate the injury and damages resulting from the
discharge.
Key factors involved in the decision to use the Type A model for an
assessment under OPA are found at 43 CFR 11.33. In the preamble to the
final rule incorporating the Type A model, DOI stated:
The rule requires that whenever an injury to a natural resource
due to an incident occurs in the coastal or marine environment a
Type A assessment shall be performed unless the limitations of the
Natural Resource Damage Assessment Model--Coastal and Marine
Environments (NRDAM/CME) make it inappropriate to the given
incident. The assumptions and data bases contained in the NRDAM/CME
constrain its applicability to only selected types of discharges or
releases and resources. For example, the discharge or release must
occur in, or enter into, a coastal or marine environment; the
substance discharged or released must be contained in the chemical
data base of the NRDAM/CME; and estimates of the type and quantity
of biological resource potentially injured should not differ
significantly from the averages listed within the biological data
base for the area in which the discharge or release occurred.
Whether certain of these conditions exist will necessarily be a
subjective decision required by the authorized official in some
incidents. The NRDAM/CME, including its data bases, is based upon
averaged values and may not necessarily reflect the actual events of
any specific incident (52 FR at 9048 (March 20, 1987)).
The factors discussed at 43 CFR 11.33 include the following
requirements: the substance discharged or released is contained in the
database of the model; the estimated quantity and species type of
biological resources potentially injured are not expected to differ
significantly from the average biomass listed in the database of the
model, for the season, province, and bottom type in which the discharge
or release occurred; the discharge or release was of a short duration;
the discharge or release was minor; the discharge or release was a
single event; the estimated injury to biological resources due to the
discharge or release is expected to be primarily due to mortality of a
species listed in data base of the model; the discharge or release
resulted in the closure of a fishing area, a beach area, or a hunting
area; the discharge or release occurring outside the coastal or marine
environment resulted in the substance entering the coastal or marine
environment; the use of chemical dispersants or other agents or
management actions used in a cleanup of a discharge or release is not
estimated to have caused significant injury to natural resources; the
discharge or release occurred at or near the water surface of the
coastal or marine environment or in the intertidal area; the discharge
or release is not expected to cause a significant change in the price
of species categories by season, province, or bottom type contained in
the data base of the model; and the expected injury to the biological
resource due to the discharge or release is not expected to have been
primarily due to exposure through the air pathway (43 CFR 11.33).
Expedited Damage Assessment: Included in the range of proposed
damage assessment procedures is the expedited damage assessment (EDA).
EDA reflects a damage assessment approach that is intermediate between
the current Type A model and proposed Comprehensive Damage Assessment
(CDA) procedures. This approach recognizes that the trustee(s) may want
to address more effects than currently available in the Type A model or
the proposed compensation formula, particularly for inland discharges.
The approach also recognizes that the size, location, and timing of a
given discharge may not warrant the complex, prolonged procedures
associated with a CDA.
The trustee(s) may determine that the use of an EDA is appropriate
after considering the factors discussed below. (1) The use of the
compensation formulas or Type A models alone would not sufficiently
account for the injury and damages resulting from the discharge. This
decision may be influenced by the following data: The volume of the
discharge is not known or readily estimated; the discharge occurred
over a period greater than a few days; injuries to unique habitats or
species occurred and are readily quantified; a complex discharge
trajectory that covers very large areas that are not readily modeled;
the distribution and/or abundance of affected biota are known to differ
significantly from seasonal averages (e.g., usually large
concentrations of wintering waterfowl were present and affected); the
ecosystems affected are not addressed by the model (e.g., rivers, small
lakes); and there are known, readily determined injuries resulting from
chronic discharges.
The injury and damages resulting from the discharge may be
adequately calculated using a combination of the Type A Model, and
limited, focused injury determination/quantification and compensable
values studies. For some discharges, the Type A model may address most
of the potential injuries and damages, with a few notable exceptions
that can be readily determined from limited data collection efforts.
The most cost-effective approach is the use of components of the Type A
model to calculate damages for those natural resources and/or services
that are appropriate, and conduct the limited studies needed to address
the remaining injuries to natural resources and/or services. For
example, the Type A model may be used to calculate damages to
fisheries, assuming the conditions of the discharge generally meet the
assumptions in the model. Recreational losses from beach closures may
be calculated separately based upon incident-specific, baseline data on
user days, and surveys conducted after the discharge.
(2) There is readily available information on the nature of the
discharge and its effect on natural resources and/or services. To the
extent practicable, the trustee(s) should rely on existing information
regarding natural resources and/or services at risk when undertaking an
EDA. This is particularly true for information that helps establish a
baseline for natural resources and/or services. Such data enable the
trustee(s) to: (a) Establish background levels and types of
hydrocarbons in key exposure pathways prior to the discharge; (b)
characterize the physical and chemical parameters prior to the
discharge; (c) characterize the status of the biological and habitat
resources prior to the discharge; and (d) identify other information
sources, such as population surveys or catch statistics that may be
useful in quantifying injury and determining lost services. In addition
to baseline data, other information useful for an EDA includes
literature that documents injuries to similar natural resources and
identifies the level and flow of services provided by injured natural
resources.
Sources of information include government, academia, and private
organizations. Existing federal monitoring programs that may provide
the data for environmental parameters include NOAA's National Status
and Trends (NS&T), U.S. Fish and Wildlife's Biological and
Environmental Status and Trends (BEST), U.S. Geological Survey's
National Water Quality Assessment Program (NAWQA), the U.S. EPA's
Environmental Monitoring and Assessment Program (EMAP), and Fisheries
of the United States (NMFS, NOAA). Abundant baseline information in
each of the categories may not always be available to the trustee(s).
Failure to locate relevant information, however, does not preclude the
trustee(s) from selecting an EDA. An EDA may still be appropriate
provided that the trustee(s) can obtain the necessary data from limited
focused studies.
Selection of an EDA may depend on general categories and
characteristics of oil. The physical and chemical properties of oil may
help determine the exposure pathway, natural resources likely to be
injured, and duration of that injury. The nature and extent of injury
to natural resources, in turn, will depend on the type of petroleum
hydrocarbons. Many types of oil have been studied extensively and their
particular characteristics and effects upon natural resources are often
well established in scientific literature. Discharges of such oil are
most suitable for an EDA. In circumstances where the trustee(s)
determines that the characteristics and effects of the particular
discharge are not well known or are uncertain, an EDA may yet be
appropriate provided that injury can be established by limited, focused
studies.
Petroleum hydrocarbons can generally be organized into the
categories of: (1) Very light refined products (i.e., gasoline and jet
fuel), (2) light oil (i.e., diesel, No. 2 fuel oil, and certain light
crudes), (3) medium crude oil, and (4) heavy oil (i.e., No. 6 fuel oil
and Bunker C). For each category, some generalizations can be made
regarding the volatility, degree of persistence, and toxicity
associated with oil. These characteristics should assist the trustee(s)
in determining whether an EDA is appropriate. See Appendix C for a
discussion regarding the attributes of each of the categories and the
suitability of each category for an EDA.
Size and location are other important factors to be considered in
determining whether an EDA is appropriate. Accordingly, the proposed
rule encourages the trustee(s) to take both size and location of the
discharge into account when selecting the relevant damage assessment
procedure.
Discharges smaller than 50,000 gallons in open water generally
either disperse, contaminate small areas, or have limited effects.
Compensation formulas or the Type A model may adequately address damage
assessment needs for these discharges. Discharges larger than 1,000,000
gallons may spread over large areas and lead to extensive contamination
and effects to natural resources and/or services. Accordingly,
discharges greater than 1,000,000 gallons may require a CDA with
greater emphasis on injury determination and quantification. The EDA
approach, therefore, may be most appropriate for most discharges
between 50,000 and 1,000,000 gallons. These guidelines do not preclude
the trustee(s) from conducting an EDA for discharges below 50,000 or
above 1,000,000 gallons. A discharge less than 50,000 gallons that
occurs in a unique or sensitive habitat, for example, may lead the
trustee(s) to conclude that the Type A model should be supplemented
with limited, focused studies. Likewise, injury determination and
quantification for a discharge of 1,000,000 gallons in open water may
be adequately addressed by an EDA. Accordingly, the trustee(s) will
have to assess the size of the discharge in the context of the location
of the discharge and natural resources and/or services affected when
selecting the appropriate damage assessment procedure.
When discharges occur in unique or sensitive habitats, such as
marshes, mangroves, or coral reefs, or where there are synergistic
effects, the effects relative to the size of the discharge may be
disproportionately large. Under those circumstances, selection of an
EDA will be based upon the trustee's(s') determination that the
procedure can accurately account for this injury. Where there are
studies documenting important aspects of a unique or sensitive habitat,
for example, the existence of this data may be relevant in a
trustee's(s') decision to select an expedited approach.
Occasionally, a single location may be plagued by consecutive
discharges in a relatively short time frame. Likewise, a discharge may
occur in a chronically degraded location where multiple pollutants have
been discharged over long periods of time. Under either of these two
scenarios, it may be difficult for the trustee(s) to differentiate
effects resulting from each discharge with only minimal field data.
Designing and implementing a study to differentiate effects pursuant to
the CDA procedures, however, is likely to be very costly. Accordingly,
where the trustee(s) expects that the costs of a CDA under such
circumstances are likely to greatly exceed the estimated damages, the
trustee(s) may wish to consider an EDA.
(3) The injury and damages resulting from the discharge can be
adequately calculated by conducting limited, focused injury
determination/quantification and compensable values studies. These
studies are generally limited in two ways. First, the trustee(s) should
be able to limit the types of natural resources for which injuries will
be sought to those of recreational, commercial, or ecological
importance as well as resources of special significance. Second, the
scope of injuries the trustee(s) will examine should be limited to
mortality, sublethal effects that can be determined with limited and
focused studies, and/or lost services.
Natural resources and/or services of commercial, recreational, or
ecological importance, or resources of special significance are most
appropriate for an EDA because such resources are often being managed,
conserved, or protected. Accordingly, extensive data on life history,
population, distribution, abundance, and economic values for services
may already exist for these resources. Further, concern regarding the
effects of oil on these resources may have stimulated studies that
document certain effects. Extensive new data collection requirements to
establish injury for these natural resources and/or services,
therefore, may not be necessary.
The scope of injuries addressed in an EDA should be more limited
than that of a CDA. For an EDA, the trustee(s) should focus primarily
on mortality, sublethal effects that are considered significant and can
be documented with limited, focused studies, and loss of services
provided by natural resources.
(4) Potential restoration actions can be implemented without
complex (i.e., multiple habitats/biological resources), prolonged
(i.e., multi-year) injury determination/quantification and compensable
values studies. One of the main objectives of an EDA approach is to
speed the damage assessment process so that restoration is initiated
more quickly. Thus, the restoration alternatives for the affected
resources and/or services should be technically feasible, have a high
probability of success, are cost-effective, and result in a net
environmental benefit. In addition, the injury determination/
quantification and compensable values studies should be cost-effective
when compared to the likely level of damages. Where, for example, the
costs of a CDA greatly exceed the expected damages, the trustee(s)
should consider narrowing the scope of studies and using an EDA.
Finally, restoration actions should be derived from the limited,
focused injury studies.
Comprehensive Damage Assessment: Comprehensive Damage Assessment
(CDA), by its nature, is complex, requiring extensive field and/or
laboratory studies to document and quantify injury, plan a restoration
approach, and estimate compensable values. Such studies usually require
scientifically valid study designs so that the resulting data and
analyses meet the standards of litigation-quality products. The key
factors for selection of CDA are summarized below.
(1) The injury and damages resulting from the discharge can best be
determined through a complex, prolonged process, involving a broad
scope of injury determination/quantification and compensable values
studies. The discharge conditions that would not be sufficiently
considered by any of the other damage assessment approaches include,
but are not limited to: the extent of exposure and injury is large
spatially and temporally (e.g., affecting many habitats and species
through multiple pathways that are pervasive and persistent); injury
via chronic toxicity is likely to comprise a significant component; the
discharge conditions are likely to result in significant
bioaccumulation; community- and ecosystem-level effects are likely; and
there are no standards or criteria with which to make comparison.
Injury at discharges where ecosystem-level effects may be significant
can only be assessed from in-depth, incident-specific studies. Further,
when chronic exposure via contaminated sediments and food webs
resulting in sublethal effects is believed a significant component of
the injury, the only approach for determining and quantifying is
through detailed studies. For these conditions, there are seldom
sufficient baseline data or a basis for calculating damages.
(2) Information concerning the nature of the discharge and its
effects on natural resources and/or services is not readily available.
All of the other approaches only consider effects that are well-
documented or readily determined. There are many conditions of a
discharge that are not adequately studied in the past and would require
detailed studies to determine natural resource and/or service injuries
and damages, such as: discharges of an unusual oil type for which there
were insufficient data on behavior, fate, and toxicity; when the
exposure pathway is not clearly identifiable; significant effects are
likely to occur to natural resources that were not previously studied,
e.g., there are little data on the effects of oil on terrestrial
mammals, reptiles, or amphibians; and economic valuation techniques are
not well-developed for the affected natural resources and/or services.
(3) Potential restoration actions cannot be determined or
implemented without substantive injury determination/ quantification
and compensable values determination studies. Where the distribution
and abundance of injured natural resources and quality and quantity of
services are poorly understood or considered unique, more complex and
prolonged assessments may be needed as a basis for restoration. Limited
injury studies may be insufficient to determine the feasibility,
effectiveness, success, and cost-benefit of various restoration
alternatives in such cases. Quantitative information on injury may be
critical to recovery, monitoring (especially if more than one
generation of a natural resources is injured), and potential
restoration research (new approaches to restore natural resources and/
or services not recovering or recovering at lower than expected rates).
Data Collection and Analysis
Purpose/Scope: The proposed rule allows the trustee(s) to conduct
limited data collection and analysis (data collection) throughout the
Preassessment Phase. The purpose of data collection is to ensure that
there is sufficient information to evaluate the risk to natural
resources and/or services resulting from the discharge of oil.
Selection of protocols and Quality Assurance (QA) for data collection
in preassessment should be based on the guidance provided in subpart C.
Only information that provides a connection to natural resources
and/or services injury or is considered necessary to the assessment
process, likely restoration alternatives to be implemented, and/or
compensable values should be collected. Where practicable, such
information should be collected from other sources such as response
agencies in order to avoid or, at least, minimize duplication of
efforts. Appropriate data collection in the Preassessment Phase
include: (1) Data necessary to make a determination to proceed with the
Preassessment Phase; (2) ephemeral or perishable data that may be lost
if not collected immediately; and (3) necessary data that serves as the
basis for the selected damage assessment procedure, the absence of
which data would prevent the trustee(s) from proceeding with damage
assessment determination of Sec. 990.23 (i.e., input into the
compensation formulas or Type A models, or the study design for the EDA
or CDA).
Baseline and Reference/Control Information: Data collection
encompass baseline and reference/control information. Baseline
information refers to on-site data of conditions prior to the discharge
that are compared to incident-specific information of those same
conditions subsequent to the discharge. Reference and control
information refers to off-site data of unaffected conditions that are
compared to similar or the same on-site conditions affected by the
discharge. Case histories of previous discharge events or other
relevant studies, although not considered as baseline or reference/
control information, may also prove useful where conditions of the case
or study are comparable in some manner to the actual discharge.
When available, the trustee(s) should collect baseline data.
Baseline data is important because it provides a temporal comparison of
conditions on natural and other (human-induced) variability. The value
of baseline information depends on the: (1) Corresponding quality of
baseline and incident-specific data; (2) absence of intervening events
such as ancillary contamination, storms, droughts, etc.; and (3)
comparability of the study design between baseline and incident-
specific activities. In many circumstances, though, the quality or
quantity of baseline data may not be adequate or sufficient to
determine the potential risk of injury to natural resources and/or
services. When such baseline information is lacking, the trustee(s) may
need to rely on historical data, if available, that may serve to
identify preexisting trends.
In contrast to baseline information, the value of reference or
control data lies in the ability to make spatial comparisons. Reference
and control conditions should be selected based on their resemblance
and proximity to the affected conditions of the discharge, and
exclusion from potential impact from the discharge. However, such
conditions may not always be available because of the nature or size of
the discharge relative to natural resources and/or services affected,
or the special status of specific natural resources and/or services
(protected natural resources and/or services). In such cases, the
trustee(s) may need to rely on other comparable measures, such as case
histories or other relevant studies.
The trustee(s) is encouraged to collect both baseline and
reference/control information when practicable. Together, such
collection efforts provide the optimal means of determining potential
risk and estimating damages to natural resources and/or services.
Emergency Restoration
Section 990.25 of the proposed rule provides authority for the
trustee(s) to conduct emergency restoration to be taken by the
trustee(s) under limited circumstances. Emergency restoration is not
considered to be an actual part of the Preassessment Phase, but is
included in this discussion and the proposed rule since it will likely
occur during the time frame of the Preassessment Phase. Ideally,
emergency restoration would be addressed through the response actions
authorized by the OSC. Emergency restoration is intended for those
limited situations where immediate action is required to avoid an
irreversible loss or prevent or reduce any continuing danger to natural
resources and/or services. Emergency restoration may be taken following
notification and during response with the approval of the OSC such that
it does not interfere with response actions. The proposed rule does not
augment the existing authority of the trustee(s). For example, if the
trustee(s) has independent authority to undertake emergency
restoration, the trustee(s) should exercise that authority. This
provision creates no additional authority to take actions on lands or
waters the trustee(s) would not otherwise have authority to take.
If practicable under the circumstances, the RP(s) should be invited
to participate prior to the trustee(s) proceeding with emergency
restoration. However, the trustee(s) cannot delay such restoration for
any reason. The costs for conducting emergency restoration are
recoverable as damages and are not considered response-related costs.
As consistent with section 1012(j)(2) of OPA, emergency restoration
is an exception to the requirement that actions be subject to prior
public review and comment. Because of this exception, the proposed rule
requires that the trustee(s) demonstrate that any emergency restoration
taken under this authority are reasonable and necessary, and conducted
in a cost-effective manner as defined in the proposed rule. Any costs
associated with emergency restoration may be claimed as part of the
damage claim or as uncompensated claims under section 1012(a)(4) of
OPA. The appropriateness of such claims against the Fund is currently
under consideration.
Response to Comments
Comment: Several commenters discussed the concept that the
trustee(s) must meet certain criteria in the Preassessment Phase before
proceeding with additional assessment actions. Those criteria mentioned
were: (1) A discharge of oil has occurred; (2) natural resources for
which the trustee(s) may assert trusteeship have been or are likely to
have been injured by the discharge of oil; (3) the quantity and
concentration of the discharged oil are sufficient to potentially cause
injury to those natural resources; (4) data sufficient to pursue an
assessment are readily available or likely to be obtained at reasonable
cost; and (5) response actions carried out or planned do not or will
not sufficiently remedy the injury to natural resources or the public
has not been adequately compensated for a loss of natural resource
services.
Many commenters strongly supported the notion that the proposed
rule should require that all five criteria be met. One commenter
indicated that the fifth criterion should be eliminated, since it is
premature, unduly vague and subjective and duplicates the first four
criteria. Some commenters were concerned that the meeting of all five
criteria was unnecessary and contrary to OPA. In addition, the fourth
criterion is unwarranted since lack of data or its cost is irrelevant
to the extent of injury and should not prevent the assessment from
proceeding. Some commenters stated that only significant and
compensable injuries to natural resources must exist before proceeding
with additional assessment procedures. One commenter was concerned that
NOAA would allow the trustee(s) to continue assessments ``if the public
has not been adequately compensated for a significant loss of natural
resource services.'' This language was thought to be vague and
subjective.
Response: NOAA is proposing a two-step Preassessment Phase to
determine: (1) if preassessment is should continue, and (2) with which
assessment procedure to proceed, if any. While no longer identified as
five separate criteria, the trustee(s) will have to determine that it
is legally, scientifically, and economically justified to proceed with
some form of damage assessment. In the first step, the trustee(s) will
likely rely upon readily available data. In order to proceed with a
preassessment, the trustee(s) must determine that: (1) the discharge
does not qualify for an exclusion under section 1002(c) of OPA; (2)
natural resources and/or services under trusteeship may be adversely
affected by the discharge; and (3) there is a reasonable probability
that the trustee(s) can make a successful damage assessment claim based
on the scientific, economic, and legal merits of the case (i.e.,
potential for injury resulting from the discharge of oil and successful
and meaningful restoration and/or compensation).
If these conditions are not met, the trustee(s) must discontinue
any further preassessment activities. Once the trustee(s) has met these
conditions, additional data collection and analysis may be conducted to
determine the most appropriate damage assessment procedure.
The previous five criteria are incorporated in this proposed rule
at different steps, and should still be addressed by the trustee(s)
during the Preassessment Phase. The first two criteria are two of the
conditions for the Preassessment Determination of Sec. 990.21(c). The
essence of the other three ``criteria'' would be considered during the
Damage Assessment Determination of Sec. 990.22.
Comment: Most commenters indicated that the trustee(s) should
initiate the Preassessment Phase as soon as possible following a
discharge. Some commenters thought that the Preassessment Phase should
be merely a desktop determination of whether to proceed with additional
assessment activities. These commenters were concerned that NOAA's
initial proposal would require the trustee(s) to engage in more than a
desktop review. If so, one commenter suggested that time limits should
be placed upon the trustee(s), to ensure timely decisions regarding
assessments. Other commenters indicated that any preassessment process
must allow flexibility to the trustee(s) to gather sufficient data in
order to proceed with and decide upon damage assessment. Some data may
not be available immediately following the discharge, but will have to
be collected later in the process in order to make such decisions.
Response: NOAA agrees that preassessment should begin as soon as
possible after the discharge occurs. However, the proposed rule, as
stipulated in the above response, provides for more than a desktop
review. The Preassessment Phase provides a mechanism for initiating a
damage assessment. The Preassessment Phase is not intended to be
extensive, expensive, or time-consuming. The Preassessment Phase may
indicate that the use of the compensation formula, Type A model,
expedited damage assessment, or comprehensive damage assessment will
appropriately address injuries to natural resources and/or services.
For some discharges, the trustee(s) might also determine that no
further damage assessment actions are necessary.
This preassessment process also allows the trustee(s) to collect
ephemeral or perishable data that may be lost if not collected
immediately, data that are necessary to make a determination required
in the Preassessment Phase, and data necessary for any of the damage
assessment procedures. The extent of data collection is left to the
discretion of the trustee(s). Since the circumstances surrounding any
discharge will vary, only general time frames can be suggested for
completing the Preassessment Phase.
Comment: Some commenters indicated that, where the RP(s) is
adequately remedying injuries to natural resources, considerable effort
and expense of conducting any part of an assessment are unnecessary.
Another commenter noted that small offshore discharges that pose no
threat to natural resources do not justify the trustee(s) conducting a
preassessment.
Response: NOAA disagrees with the general thrust of these comments.
While many discharges will not require a comprehensive damage
assessment in order to fulfill the mandate under OPA, the trustee(s)
must make some type of determination shortly following a discharge of
what type of damage assessment should be completed, if any. Further,
even if the RP(s) responds adequately to the discharge, the lost use
value pending restoration is still recoverable.
Comment: Many commenters suggested developing a plan that allows
the trustee(s) to make decisions based on data collection efforts. Such
a framework should address the nature and extent of injuries to natural
resources and/or services. Another commenter was concerned that
preassessment should not be distinct from data collection and early
sampling.
Response: NOAA considers identification and extent of injuries to
natural resources and/or services as essential and is incorporating
those factors into the Preassessment Phase. In the Preassessment Phase,
the trustee(s) will consider the: Nature of the discharge and
environmental setting; potential for exposure, injury, and risk; extent
of injury; and estimated damages. Such a framework will aid the
trustee(s) to select the most appropriate damage assessment approach,
if any. Data collection and analysis may be conducted throughout the
Preassessment Phase.
Comment: One commenter indicated the importance of realizing that
the quantity of oil estimated during the preassessment is only an
estimate and is certainly subject to change.
Response: Oil quantity and other estimates made during the
preassessment are preliminary and subject to change as additional
information is collected by the trustee(s).
Comment: Most commenters indicated that both data collection and
early sampling activities are helpful in defining the need for
potential damage assessment and restoration and were supportive of such
efforts so long as they were relevant to existing or anticipated injury
to natural resources and/or services. A few commenters questioned the
utility of baseline data collection, and others questioned the
usefulness of early sampling efforts as originally outlined in the
ANPRM. Another commenter indicated that baseline data collection might
be redundant to other ongoing efforts.
One commenter suggested that all compiled information be put in a
form that would also prove useful in future prespill planning. Some
commenters offered examples of the type and sources of information that
should be used.
Response: NOAA agrees that only information on natural resources
and/or services (current or planned) that the trustee(s) considers
relevant should be collected. The information should provide a
connection to the damage assessment process and likely restoration
actions.
Baseline collection efforts could provide a basis for information
needed during the Preassessment Phase. Baseline data collection should
not be redundant, but should be coordinated with other data collection
efforts.
NOAA agrees that the information collected could be useful in
future prespill planning activities and is recommending such
integration. NOAA is also providing information on the types and
sources of information that might be required in the Preassessment
Phase in the proposed rule and the Preassessment Phase Guidance
Document.
Comment: Several commenters stressed the importance of baseline
data and reference areas over background data. If these areas are
properly selected, then such data may provide the best type of
information to estimate injury than are baseline and historical
comparisons. Both baseline and reference information serve as the basis
for damage assessment and restoration.
Response: NOAA agrees with these comments and has incorporated this
notion in the proposed rule.
Comment: At least one commenter stressed that preassessment
activities must be consistent with the NCP or other response plans
developed under OPA.
Response: NOAA agrees. The Preassessment Phase stresses
coordination and following all applicable plans (i.e., area contingency
plans, etc.) in order to ensure consistency and efficiency.
Comment: Some commenters encouraged the early participation of the
RP(s) in the preassessment and assessment process. Early cooperation
could set the tone for a productive joint assessment and allow the
trustee(s) and RP(s) to settle major issues, including the scope of the
damage assessment and funding. The lack of early participation and
cooperation could result in parallel assessments. Others were concerned
that early participation by the RP(s) might encourage the trustee(s) to
delay the process while negotiating with the RP(s). In addition, the
RP(s) could influence the trustee(s) to lessen the scope of the
preassessment and eventual assessment. Other commenters indicated that
it should be the option of the RP(s) whether to participate in
preassessment, and the RP(s) should not be forced to do so. To
encourage participation early in the damage assessment process, one
commenter suggested that the RP(s) have an active role, if desired, in
the development and implementation of data collection and early
sampling activities, and that the information and cost be shared on a
mutually acceptable basis. Another commenter suggested that the
trustee(s) should take the lead role with the RP(s) having the
opportunity to review and comment on proposed activities.
Response: To the extent practicable, NOAA encourages the trustee(s)
to invite cooperative RP(s) participation early in the damage
assessment process. Such an invitation is in line with NOAA's goal of
fostering cooperation and early resolution rather than litigation. The
trustee(s) will maintain oversight over all activities so that the
quality and integrity of information are ensured. NOAA is also
recommending that, when appropriate, all data collection and analysis
be coordinated with the RP(s) so that there is no duplication of
effort. The RP(s) can provide immediate financial and technical support
to the preassessment process that might be unavailable to the
trustee(s). However, OPA provides that the overall responsibility for
any part of the assessment resides with the trustee(s). It will be up
to the trustee(s) in each preassessment to determine the appropriate
involvement of the RP(s). Where the RP(s) is known, the trustee(s) may
contact the RP(s) and invite the RP(s) to participate in the
preassessment. However, the trustee(s) cannot significantly delay the
onset of the preassessment while waiting for a response from the RP(s).
The proposed rule does not require participation of the RP(s). Thus,
the RP(s) may always opt not to participate.
Comment: One commenter argued the RP(s) must be allowed to conduct
a full scientific assessment to determine actual damages, regardless of
the assessment procedure chosen by the trustee(s). Another commented
that the RP(s) must be in agreement with the selection of modeling to
assess damage.
Response: Section 990.23 of the proposed rule allows the RP(s) to
request a more comprehensive damage assessment than the trustee(s)
selection if the RP(s) is willing to bear the additional costs at the
outset of the more comprehensive assessment. The RP(s) is also free to
fund a separate assessment.
Comment: Another commenter argued that the RP(s) should not be
allowed to conduct a different type of assessment to be presented in
court when they are dissatisfied with the trustee's damage assessment
selection. If the RP(s) does disagree with the selection, he should be
required to submit a contrary position early in the administrative
process in an attempt to persuade the trustee to reconsider. The
trustee's selection should be reviewed on the administrative record.
Another commented that the RP(s) should not be allowed to challenge
simplified methods of assessment based on the fact that more accurate
data exist, since protracted litigation would defeat their very
purpose.
Response: As mentioned above, the proposed rule does allow the
RP(s) to request and fund a more comprehensive damage assessment. NOAA
agrees that the trustee(s) should be notified of the RP's(s') request
early in the process and provides for that early notification. In
addition, the trustee(s) decisions must be documented in the
administrative record, including the choice of an assessment procedure.
NOAA's proposed rule establishes that a reviewing court will be limited
to the administrative record.
Comment: At least one commenter indicated that public participation
in the preassessment is vital and that preassessment decisions should
be available for public review.
Response: Since discharges of oil are dynamic and rapid events, the
early activities of the trustee(s) will necessarily be conducted
without concurrent public review and comment. As indicated in the
prespill planning of the proposed rule, the trustee(s) is encouraged to
involve the public in the formation of plans of what to do in case of a
discharge. In addition, Sec. 990.20(e) of the proposed rule requires
that the trustee(s) prepare a Preassessment Report, which will be
available for public review as part of the assessment record.
Comment: One commenter indicated the requirement in 43 CFR
11.23(b), which calls for a ``reasonable probability of making a
successful claim,'' is noticeably lacking from the proposal in the
ANPRM of March 13, 1992.
Response: NOAA agrees. This proposed rule provides language based
on the potential for injury resulting from the discharge of oil. The
trustee(s) should first seek to recover damages from the RP(s). If the
RP(s) is insolvent or unreachable under OPA, NOAA's position is that
such claims may then be pursued from the Oil Spill Liability Trust Fund
under section 1012(a)(4) of OPA.
Comment: Another commenter suggested that ``reasonable cost'' be
more clearly defined.
Response: NOAA has revised the definition of reasonable cost. All
costs of conducting the overall assessment in accordance with this
proposed rule are reasonable. Although no longer included in the
definition of reasonable cost, the trustee(s) should be cautious about
proceeding with assessments in which the anticipated costs of
conducting the total assessment (not individual studies) are more than
the anticipated damages.
Comment: One commenter suggested that a RP who responds quickly to
the discharge and is cooperative should be awarded good faith points
and reduced assessment costs.
Response: The RP(s) that has adequately responded to the discharge
may, in effect, have reduced the damages for injuries to natural
resources since rapid containment and cleanup would likely reduce the
effect of the oil in the environment. However, OPA does not provide the
trustee(s) the authority to reduce damage claims for any RP(s) on this
basis. It is expected that the overall costs of conducting assessments
will be lower to the RP(s) when the RP(s) is cooperative, since both
the RP(s) and trustee(s) will not be conducting separate assessments.
Comment: Several commenters suggested that funding be available to
the trustee(s) to conduct data collection and early sampling and that
funding not be subject to a lengthy approval process. In addition, some
commenters suggested that NOAA establish a fund through the proposed
rule that would provide funds for emergency response/restoration
actions.
Response: OPA does not authorize NOAA to establish such a fund for
either purpose. It is NOAA's position that uncompensated costs of
emergency restoration actions authorized under Sec. 990.25 may be
pursued as uncompensated claims under section 1012(a)(4).
Comment: A commenter argued for allowing the use of increased
costs required to protect natural resources at risk from a discharge to
be recoverable, if these costs are not covered by private claimants.
The commenter concluded that, often such increased costs are a
reasonable estimate of the value of natural resources at risk.
Response: The proposed rule allows recovery of such increased
costs. However, it would not be correct to suggest that such additional
costs are, in any way, a measure of the true value society places on
natural resources at risk. For example, if a discharge of oil were to
occur in an area adjacent to a breeding and rearing habitat for an
endangered or threatened species, the cost of preventing the oil from
fouling that habitat, and thus injuring the resident population of
animals, would have no obvious or direct relationship to the ``value''
society places on those endangered or threatened species.
Comment: Several commenters cautioned against NOAA requiring the
trustee(s) to estimate costs of assessment and restoration activities.
Many indicated that this practice would lead to a strict cost/benefit
analysis and such estimates are preliminary and may be substantially
revised as new information is collected. Others indicated that such
estimates are not needed in the Preassessment Phase.
Response: Since the costs of conducting an assessment and
restoration are a part of the measure of damages under OPA, NOAA feels
that preliminary estimates of both are necessary for determining cost
effectiveness and for planning purposes. However, such estimates at
this stage are merely preliminary and are to be used in determining
whether to proceed with further assessment procedures. Estimates are
subject to change as more information is collected. The trustee(s) is
cautioned against using these preliminary figures for other purposes
since they are subject to change. A strict cost/benefit analysis is not
required by OPA or this proposed rule.
Comment: At least one commenter indicated that
FR Doc. 94-225 Natural Resource Damage Assessments
the regulations
should identify the recoverable costs and require the trustee(s) to
document such costs.
Response: NOAA agrees, and Sec. 990.20(e) of the proposed rule
identifies examples of preassessment costs and requires adequate
documentation.
Comment: Several commenters indicated the usefulness of emergency
restoration activities in reducing injury and future restoration costs.
Others recommended limited public review of such actions due to the
emergency situation, yet noted efforts should be made to keep the
public informed of such activities.
Response: NOAA agrees and provides for emergency restoration in
Sec. 990.25 of the proposed rule. Since these actions would only be
taken in emergency situations, full public review and comment would be
impossible. However, to the extent practicable, the trustee(s) should
keep the public informed of such actions. Of course, such actions will
be a part of the Preassessment Report and eventually part of the Report
of Assessment. As part of prespill planning, generic restoration/
protective plans could be developed with public review.
Comment: One commenter requested that the rule should not limit
emergency restoration to situations involving endangered or threatened
species and their habitats.
Response: NOAA agrees, and no such limitation is proposed in
Sec. 990.25.
Comment: Some commenters raised concern over a trustee(s)
conducting emergency restoration without coordinating with the response
agency. Others indicated that such actions should be part of the
established response mechanism.
Response: NOAA agrees with this concern. In the proposed rule, the
trustee(s) is to take emergency restoration only after notification
and/or consultation with the response agency and the trustee's(s')
determination that current or anticipated response actions are
insufficient. The response agency(ies) and where identified, the RP(s),
should be given an opportunity to address the emergency situation
before the trustee(s) takes such actions. In addition, NOAA recognizes
that the possibility of needing to conduct such emergency restoration
should be greatly reduced following the completion of the Fish and
Wildlife and Sensitive Environments Plan required under section 4201 of
OPA. However, emergency restoration will be incident- or resource-
specific and may not be specifically identified in the Fish and
Wildlife and Sensitive Environments Plan.
Comment: Other commenters indicated that emergency restoration was
not properly part of the Preassessment Phase.
Response: NOAA has included this subpart under the Preassessment
Phase because that is the time-frame during which the trustee(s) may
likely be faced with the possibility of conducting emergency
restoration.
Comment: A number of commenters provided support for the
development of national, regional, and local protocols; each
respectively being more specific. Others cautioned against a strong
emphasis on the use of local plans and protocols, since a discharge may
never occur in many areas.
Response: NOAA does not require the development of such protocols,
but encourages the trustee(s) to develop appropriate protocols for
assessment activities through prespill planning in order to avoid
confusion and lengthy delays in a damage assessment. It is the
determination of the trustee(s) whether such protocols should be
developed for specific area(s). Areas that have a history of oil
discharges will likely benefit from the development of such protocols.
Draft Assessment/Restoration Plan (DARP)
Subpart C Preamble
General
The proposed rule authorizes the trustee(s) to use a variety of
assessment procedures, depending on the nature and extent of potential
effects of the discharge of oil. Although each assessment will be
incident-specific there are many common elements. For example, the
trustee(s) will always conduct the Preassessment Phase as outlined in
subpart B and develop a DARP under this subpart. The purposes of the
DARP are to ensure that the assessment/restoration is performed in a
planned, cost-effective, and systematic manner, and provide for public
review and comment of the restoration plans as required under section
1006 of OPA. The DARP should be developed in accordance with the
requirements and procedures in this subpart and in subparts D, E, F,
and G.
In addition, NEPA and ESA compliance shall be incorporated into the
restoration planning process and be made part of the DARP. NEPA
complements the purposes of OPA to develop an integrated approach to
environmental planning and decisionmaking. NOAA encourages the
trustee(s) to integrate NEPA procedures with the DARP procedures
described below at the earliest possible time. The DARP should be
combined with the appropriate NEPA document to create a single
integrated environmental planning tool for the trustee(s) and the
public. The scoping and public review procedures of these regulations
should be implemented to provide compliance with NEPA.
NEPA compliance should not impose additional burdens upon the
trustee(s). Rather, those procedures normally contemplated as part of
the DARP can be framed as NEPA analysis and full NEPA compliance
achieved without additional paperwork or data gathering. The
regulations of the Council on Environmental Quality (CEQ) require
environmental impact statements (EIS) to be analytic rather than
encyclopedic (40 CFR 1502.2) and encourage the discussion of impacts in
proportion to their significance. The DARP need not be expanded in
scope or length to achieve NEPA's goal of producing an environmental
decision document useful to the trustee(s) and the public. (40 CFR
1502.14, 40 CFR 102.15) Rather, concise analysis of available
restoration alternatives, and the consequences of their implementation
in the post-spill environment is at the heart of the DARP as well as
any NEPA document with which it may be combined.
As mentioned throughout this preamble and proposed rule, the
trustee(s) is strongly encouraged to develop prespill plans for
conducting an assessment and restoration. Those prespill plans could be
so specific as to identify the type of assessment procedure and
restoration actions likely to be conducted under certain discharge
scenarios. If so, the DARP should be consistent with the actions
identified in the prespill plan to the maximum extent practicable. NOAA
also encourages the trustee(s) to view the prespill planning process as
an opportunity to develop broad or programmatic NEPA documents to which
future site or project specific NEPA documents may be tiered. (See 40
CFR 1502.20, 40 CFR 1502.40) The inclusion of the NEPA analysis with
the prespill plan will assist both the trustee(s) and the public to
anticipate necessary restoration actions, their impacts and successes,
and promote early resolution of oil spill incidents.
The DARP, along with any significant modifications and associated
comments and responses, shall be placed in the administrative record.
The DARP shall also become the Report of Assessment. The trustee(s)
shall have final approval as to the content and development of the
DARP. The DARP shall be developed in order to fulfill applicable NEPA
requirements. Those restoration actions that do not individually or
cumulatively have a significant effect on the human environment may be
categorically excluded from NEPA compliance by a federal trustee
through its NEPA implementation regulations. (See 40 CFR 1508.4) The
federal trustee(s) should also consider the need for coastal states
consistency evaluations and rulings, pursuant to the Coastal Zone
Management Act for the DARP.
NOAA specifically solicits comments upon NEPA compliance and the
availability of the ``functional equivalence'' doctrine to federal
trustees.
Content
Just as each assessment/restoration will have common elements, each
DARP will address the same components of each assessment/restoration.
The DARP will address each of the four components of the Assessment
Phase: (1) The injury determination component, i.e., results of injury
determination studies, to the extent they are known, with documentation
of those results; (2) the injury quantification component, i.e., the
results of quantification studies, to the extent they can be
calculated, with documentation of those results; (3) the restoration
component, i.e., the evaluation, selection, and estimated cost of
planned restoration actions; and (4) the compensable values component,
i.e., valuation studies planned, subject to some exceptions, with the
results of those studies if deemed appropriate by the trustee(s). It is
recognized that, for CDAs, where there are prolonged (multi-year)
studies, the trustee(s) need not develop all components of the DARP
simultaneously, but may develop annual reports to update the DARP as
the assessment progresses.
Each DARP should include the following common elements. First, the
DARP shall identify the discharge of concern and give descriptions of
the natural resources and/or services involved. The trustee(s) should
include a statement of authority for asserting trusteeship, or co-
trusteeship, for those natural resources and/or services considered in
the DARP. The DARP shall also include the Preassessment Phase Report
and the information requirements of each of the assessment procedures,
as described in subparts D, E, F, and G. For example, for a Type A
assessment, subpart E requires that the trustee(s) provide a copy of
the inputs used to apply the model. These are the types of information
requirements that would be included in a DARP for a Type A assessment.
Therefore, the level of detail for each component of the DARP shall be
consistent with what is appropriate for the type of assessment
procedures being conducted.
Development
Because of the dynamic nature of discharges of oil, the trustee(s)
should begin implementation of the injury determination and
quantification components of the assessment/restoration as soon as
practicable after these components are developed and approved by the
trustee(s). As data are produced in the injury determination and
quantification components, the trustee(s) should then complete the
restoration component and design of the compensable values component
for the injured natural resources and/or services. However, except as
provided for in prespill plans (Sec. 990.30(c) of the proposed rule) or
for emergency restoration (Sec. 990.25 of the proposed rule), the
restoration planning and compensable values components may not be
implemented before public review and comment, as discussed below.
Where there are multiple trustees, these trustee(s) should also
jointly develop the DARP. The proposed rule provides that, where there
are multiple trustees, a lead administrative trustee should be
designated to administer the DARP. The lead administrative trustee
should act as coordinator and contact regarding all aspects of the
DARP. The trustees are encouraged to cooperate and coordinate any DARP
that involves coexisting or contiguous natural resources or concurrent
jurisdiction, but they arrange to divide responsibility for
implementing the components of the assessment in any manner that is
agreed upon by all of the affected natural resource trustees.
The proposed rule requires public involvement in various aspects
and stages of the assessment/restoration process. Therefore, the
proposed rule does not require the trustee(s) to seek public review and
comment of injury determination/quantification studies proposed in the
DARP except those undertaken pursuant to a CDA. For the compensation
formula, the Type A model, and the EDA, the trustee(s) need only notify
the public as to the type of assessment procedure being conducted. The
trustee(s), however, always has the option to provide for formal public
review and comment should the trustee(s) deem this appropriate. For a
CDA, the trustee(s) must provide for public review and comment of the
injury determination and quantification studies.
The trustee(s) must provide an opportunity for public comment on
the restoration component of the DARP. Where there is no Regional
Restoration Plan developed and adopted following public review and
comment pursuant to prespill planning, as described in Sec. 990.16 of
this part, the trustee(s) must provide for public review and comment of
the restoration component of DARPs developed pursuant to the
compensation formula, Type A model, EDA, and CDA. However, where a
Regional Restoration Plan has been developed and adopted, following
public review and comment pursuant to prespill planning, as described
in Sec. 990.16 of this part, the trustee(s) must notify the public of
the availability of a DARP for a compensation formula or Type A
assessment and seek comment on that decision. The trustee(s) may
provide for such public comment on each assessment using a compensation
formula or Type A assessment or may provide periodic notice (e.g., once
a month) of the intent to apply several recoveries from these
assessments to a Regional Restoration Plan. The trustee(s) must provide
for public review and comment of the restoration components of DARPs
developed pursuant to an EDA or CDA.
It is at the discretion of the trustee(s), however, to provide for
notification, review, and comment of those portions of the DARP
concerning the calculation of compensable values. The trustee(s), at
his discretion, may withhold the description of studies and
methodologies for determining the damages for the compensable values
from public review and comment. Such damages are still afforded the
rebuttable presumption, but may not be eligible for judicial review on
the record.
Where the trustee(s) is required to provide for public review and
comment, the trustee(s) must provide a minimum of 30 calendar days. The
trustee(s), in his discretion, may grant reasonable extensions for that
review. Notification or publication of a DARP may be provided in a
publication of local, state, regional, or national circulation, as
deemed appropriate to the scope of the assessment/restoration by the
trustee(s).
The proposed rule states that the DARP may be modified at any stage
of the assessment/restoration process as new information becomes
available. Any modification to the DARP that is significant in the
judgment of the trustee(s) shall be made available for review and
comment for a period of at least 30 calendar days, with reasonable
extensions granted at the discretion of the trustee(s), before tasks
subject to modification are begun. However, any modification to the
DARP that is not significant in the judgment of the trustee(s) may be
made available for review at the discretion of the trustee(s), but the
implementation of such modification need not be delayed as a result of
such review.
The proposed rule provides that the trustee(s) must review and
respond to public comments during preparation of the restoration
component of the DARP. In addressing comments received concerning the
proposed restoration approach, it is not necessary for the trustee(s)
to respond to each comment received. Comments may be summarized in
like-subject areas and responded to only once.
Finally, the proposed rule provides that, at the option of the
trustee(s), and if agreed to by any RP(s) acting jointly, the RP(s) or
any other party under the direction, guidance, and monitoring of the
trustee(s) may implement all or any part of the DARP as approved by the
trustee(s). Any decision to involve the RP(s) shall be documented in
the DARP.
Other Common Elements of a DARP
Protocols: Selection or development of specific data collection
protocols in the preassessment and assessment/restoration activities is
left to the discretion of the trustee(s) because of the incident-
specific nature of discharges and broad range of natural resources and/
or services potentially affected. Therefore, only general guidelines
for protocol selection are provided to the trustee(s) in this preamble
and proposed rule. Protocols should be chosen that: (1) Are applicable
to the discharge and environmental setting; (2) are cost effective; and
(3) will provide information consistent with data quality requirements.
Factors that should be considered in selecting the protocols include,
but are not limited to: (1) The nature of the discharge and
environmental setting; (2) applicable study design requirements, such
as that developed by Green, R.H., Sampling Design and Statistical
Methods for Environmental Biologists; John Wiley & Sons, New York, NY
(1979); (3) QA and data management requirements; (4) potential human
health and safety; and (5) benefits and costs of alternative protocols.
Where practicable, the trustee(s) should use protocols that are
scientifically verified, well documented and standardized by the U.S.
Environmental Protection Agency (U.S. EPA), U.S. Fish and Wildlife
Service, U.S. Army Corps of Engineers, American Society for Testing and
Materials, American Public Health Association, Organization of Economic
Cooperation and Development, or other government or scientific
agencies. Some protocols may not be standardized but nevertheless are
appropriate for incident-specific evaluations or may be the only
protocols available at the time. Other protocols may need to be
modified or developed. The trustee(s) should have the option to use
whatever protocols may be relevant to the discharge.
Quality Assurance (QA): When practicable, data collection in
preassessment and subsequent damage assessment should be consistent
with the QA guidance developed by the U.S. EPA, Guidelines and
Specifications for Preparing Quality Assurance Program Plans; Office of
Monitoring Systems and Quality Assurance, Washington, DC, EPA-QAMS-005/
80, (1980); U.S. EPA, Interim Guidelines and Specifications for
Preparing Quality Assurance Project Plans; Office of Monitoring Systems
and Quality Assurance, Washington, DC, EPA-QAMS-005/80, (1980); and
U.S. EPA, Preparing Perfect Project Plans; Office of Research and
Development, Cincinnati, OH, EPA/600/9-89/087, (1989). The Program Plan
outlines the overall quality of assessment activities; addressing QA
issues in regard to policy, planning, review, and implementation.
Project Plans, a vital part of the Program Plan, serve as guidance on
aspects of data collection for the individual studies comprising the
damage assessment. Preassessment project plans should serve to assess
suppositions for the damage assessment process. EDA project plans may
be combined among studies with similar scope and substance. CDA project
plans should be of sufficient scope and substance that they can stand
on their own. The trustee(s) should develop both Program and Project
Plans in an EDA and a CDA.
It is understood that due to the nature of oil discharges, certain
QA requirements as prescribed by the U.S. EPA may not be practicable.
Therefore, the trustee(s) is encouraged to develop his own QA plans to
allow for relevant data collection. Data collection involving actual
measurement may also be subject to the provisions concerning human
health and safety and applicability of natural resource protection
statutes.
Data Management: Where appropriate, the trustee(s) should also
develop a data management plan. This is most appropriate for an EDA or
a CDA. Establishment of a data management system provides efficient
access to collected data and information. The trustee(s) is encouraged
to develop such a centralized data management plan, if not done so
during prespill planning, to accommodate the volume and complexity of
data. An effective data management plan should address, at a minimum,
the following: (1) Type and volume of data; (2) uses of the data; (3)
existing data management capabilities; (4) types of analyses conducted;
(5) QA needs; (6) reporting requirements; and (7) access to data
further information is available in the Preassessment Phase Guidance
Document referenced earlier in this preamble.
Responses to Comments
Comment: One commenter recommended that damage assessment
contingency plans not be rigidly drawn. The commenter cautioned that
such a plan could become a liability where the nature of a particular
discharge is not contemplated in the plan. Further, it could be an
unwise expenditure to develop a contingency plan broad enough in scope
to address an endless array of possible discharges.
Response: NOAA agrees that damage assessment and restoration plans
should not be rigidly drawn.
Comment: One commenter stated that NOAA must guard against the
frivolous spending of company funds, when the company has little or no
input into how that money is spent.
Response: NOAA agrees. The assessment/restoration guidance
procedures allow for public notice, comment, and consideration of all
public comment before a final restoration plan is developed. These
procedures should mitigate against any frivolous expenditures.
Comment: Most commenters indicated that the trustee(s) should
follow quality assurance (QA) procedures developed by or similar to
those of the U.S. EPA. Some commenters, however, indicated that the
full QA procedure may add more expense without necessarily increasing
the quality of the data.
Response: NOAA agrees that, when appropriate, the trustee(s) and
RP(s) together should develop and implement QA plans. However, NOAA
suggests that the trustee(s) determine those components of the U.S.
EPA's QA procedures that are relevant to the discharge.
Compensation Formulas
Subpart D Preamble
General
Through this proposed rule, NOAA is providing the trustee(s) with a
variety of assessment procedures in recognition of the need for
flexibility in dealing with situations that, by their nature, are
incident-specific. The criteria for the selection of any procedure are
not rigid, nor does the proposed rule require the trustee(s) to select
a particular procedure for a particular discharge. To assist the
trustee(s) in making this decision, NOAA is providing guidance to the
trustee(s) in selecting the procedure most appropriate for a particular
discharge. The trustee(s) is then able to choose among the various
procedures based upon the circumstances of the discharge or the
resources and/or services involved. However, due to the large number of
small discharges, it is expected that the trustee(s) will use the
compensation formulas or the Type A model to determine damages more
frequently than either the EDA or the CDA.
The availability of a compensation formula or a computer model for
a particular discharge, for example, would not necessarily rule out the
use of an expedited or comprehensive damage assessment procedure where
the trustee(s) finds that either the formula or the model would not be
the best method for assessing damages. Parallel assessments using a
combination of more than one procedure may be allowed, provided there
is no double recovery. NOAA is suggesting that the trustee(s) may
exercise best professional judgment in fashioning an approach to an
assessment using the four proposed procedures singly or in some
combination. This approach is consistent in concept with the parallel
assessments provided for under the current CERCLA rule.
The compensation formulas were developed after extensive review of
the scientific and economic literature, with particular emphasis on
restoration of various habitat types. This information was then
compiled to be used with both the current Type A model for Coastal and
Marine Environments and a draft version of the Type A model under
development for the Great Lakes Environment in developing the
compensation formulas. NOAA is proposing these formulas for use in
certain circumstances as a reasonable approach to natural resource
damage assessment. NOAA is specifically seeking comments on the
reasonableness and appropriateness of such an approach.
Range of Formulas
The estuarine/marine and inland waters compensation formulas
proposed are applicable to the vast majority of oil discharges. An
analysis of reported coastal oil discharges from 1973 through 1990
shows that 99.8% of the discharges were less than 50,000 gallons (99%
were less than 10,000 gallons). These compensation formulas are
available for use by the trustee(s) for these relatively small
discharges, particularly when assessing discharges that occur in areas
where it might be difficult or very costly to ascertain precise
environmental effects, e.g., small discharges in open water or
discharges occurring in areas that are subject to frequent discharges.
The compensation formulas cover a range of sizes by volume of
discharge. These ranges are broken down into four categories: 10
gallons to <1,000 gallons; 1,000 gallons to <5,000 gallons; 5,000
gallons to <10,000 gallons; and 10,000 gallons to 50,000 gallons. Ten
gallons is the lower limit on discharges covered by the compensation
formulas. NOAA is not saying that discharges of less than 10 gallons do
not cause injury. However, after evaluating thousands of simulations of
scenarios involving very small spills, NOAA determined that ten gallons
is a statistically valid lower limit for this type of assessment
procedure.
An analysis of the data used to develop the formulas showed that
the smaller discharges, i.e., fewer than 10 gallons, were statistically
meaningless, i.e., too much scatter, from which to draw ``average''
assumptions. However, this lower limit is not meant to preclude
recovery for these smaller discharges. There are several options
available to the trustee(s). In some cases, it may be reasonable for
the trustee(s) to linearly extrapolate downward from the lower damage
figure contained in the formulas for the 10-gallon discharges. On the
other hand, where the environmental conditions at the time of the
discharge indicate that extrapolation from the averages in the formulas
is inappropriate, the trustee(s) may apply the Type A model at 43 CFR
11 to the discharge. Finally, if there are unusual circumstances that
indicate the need for site-specific analysis, the trustee(s) may decide
that an EDA would be more appropriate.
As for the upper limit of 50,000 gallons, experience indicates that
discharges over 50,000 gallons are likely to result in injury that
would be more appropriately addressed by another assessment procedure,
e.g., the Type A or EDA. These large discharges do not typify the
``small'' discharges described by the scenarios used to develop the
compensation formulas. Determining the ``volume'' of oil discharged is
dependent upon whether the trustee(s) is using the estuarine/marine
formula or the inland formula. This distinction is due to the different
treatment of cleanup between the two types of water systems. Therefore,
the discussion concerning estimating the volume discharges is given
below within the discussion of each formula.
Damage Formula
Generally, with increasing volume discharged, damage totals
increase while damages per gallon decrease. However, this relationship
between damages and volume discharged is a complex non-linear function
that varies by scenario. The results of the scenarios showed a definite
damage curve. The goal then was to define as accurately as possible the
shape of that curve. Breaking down the scenarios into the four ranges
of size defined earlier gives a linear interpolation of the scenario
results. The formula itself is designed to place the incident of
concern on a given point of the curve. The formula is given as
``1991$=m(VOL)+b.'' In this formula, ``m'' is multiplier, multiplied by
the number of gallons discharged, that represents the change in dollars
per gallons discharged, and ``b'' (positive or negative) represents the
number of dollars added to that product to arrive at the actual damages
for the volume discharged. Both ``m'' and ``b'' are given in the tables
in Appendix A of each of the technical documents. ``(VOL)'' is the
amount of oil discharged, as defined in the proposed rule. This
formula, as applied, defines damages as a function of volume
discharged.
The dollar figures produced by applying the compensation formula
described above represent 1991 U.S. dollars. These damages calculated
in 1991 U.S. dollars may be translated to U.S. dollars for another year
using the gross national product price deflator price index. This index
may be obtained from the Economic Report of the President, issued
annually, or the Survey of Current Business, issued monthly, for years
not yet in the Economic Report.
These formulas allow an estimate of damages per gallon, taking into
account average restoration costs plus average direct lost use values
pending restoration. The following types of damages are included in the
formulas: fishery species consumptive use values (fishing), wildlife
species consumptive use values (hunting) and nonconsumptive (viewing)
use values, restocking costs and direct restoration costs of affected
habitats. Restoration costs are included for restoration activities
that are technically feasible and cost-effective.
Passive use (nonuse) values are currently not included in the
formulas, since, at the time of their development, NOAA determined that
sufficient information did not exist concerning average passive use
values applicable to the compensation formula approach. NOAA has
decided to propose the formulas without passive use values so that they
would be available for use by the trustee(s) rather than delay
proposing to a future date. Even though passive values are not included
in the proposed compensation formulas, NOAA is considering how such
values may be included. Therefore, NOAA specifically requests comments
on how such passive values might be included in the compensation
formulas. Until that time, discharges under 50,000 gallons that are
likely to result in a significant loss in passive use values should be
assessed under another procedure.
Variations in Type of Oil, Region, Habitat, and Seasons
The formulas assume degrees of injuries to natural resources likely
to result from a discharge of oil. These assumptions take into account
the amount and type of oil discharged and the region and habitat type
in which the discharge occurs. The scenarios consider the various
discharges in each of the four seasons. The proposed rule defines the
four seasons as: Winter being from January 1 through March 31; spring
being from April 1 through June 30; summer being from July 1 through
September 30; and fall being from October 1 through December 31. These
seasonal boundaries correspond closely with biological seasonal
variations. The trustee(s), therefore, identifies the correct scenario
by locating the season in which the date of the discharge falls. This
approach allows both a national consistency and a regional specificity.
Damage Claim
Section 1017(a) of OPA provides:
Review of any regulation promulgated under this Act may be had upon
application by any interested person only in the Circuit Court of
Appeals of the United States for the District of Columbia. Any such
application shall be made within 90 days from the date of promulgation
of such regulations. Any matter with respect to which review could have
been obtained under this subsection shall not be subject to judicial
review in any civil or criminal proceeding for enforcement or to obtain
damages or recovery of response costs.
Because the compensation formulas are being developed as a
regulation through public review and comment, any challenges to the
data or models used to develop the formulas would have to be made
within ninety days of the promulgation of this regulation rather than
in a particular natural resource damage case, as provided in section
1017(a) of OPA. If a trustee(s) uses one of the compensation formulas
in a particular damage case, the RP would still have an opportunity to
challenge the damage claim; however, that opportunity would be limited
to challenging the applicability of the formulas and the accuracy of
any site-specific input data used by the trustee(s). The damages
calculated by the use of the compensation formula are conclusive for
the injuries included in that formula.
The damages computed by using the compensation formulas may be
combined with damages determined for beach and/or shoreline closure.
These damages, along with the reasonable costs of assessing those
damages, are included in the demand presented to the RP(s) pursuant to
Sec. 990.81 of this part. Additional damages determined by conducting a
parallel assessment may be added to the damages determined with the
compensation formula so long as there is no double recovery.
The trustee(s) shall document the data required to use a
compensation formula. This documentation shall be included in the
Report of Assessment required by Sec. 990.80 of this part.
Final Restoration Plan
The trustee(s) shall develop a Final Restoration Plan based upon
the damages recovered through the use of a compensation formula. This
plan shall be developed pursuant to subpart H of this part.
References
The proposed formulas and supporting documents for both the
Estuarine and Marine Environments and the Inland (Freshwater)
Environments are incorporated into the proposed rule by reference. They
are: ``Compensation Formula for Natural Resource Damage Assessment
under OPA: Oil Spills Into Estuarine and Marine Environments, Volumes
I-IV'' and ``Compensation Formula for Natural Resource Damage
Assessments under OPA: Oil Spills Into Inland (Freshwater) Waters,
Volume I-III.'' Copies can be obtained from the address at the
beginning of this preamble.
Estuarine and Marine Compensation Formula
General
The estuarine and marine compensation formula is based upon the
various coastal provinces with representative habitat types for each of
these provinces, giving a total of 55 province/habitat combinations.
Each possible province/habitat combination has an associated set of
damage estimates based upon each of the four seasons, five
representative oils, and five possible discharge sizes. The
compensation tables given in Appendix A of Volume I of the
``Compensation Formula for Natural Resource Damage Assessments under
OPA: Oil Spills into Estuarine and Marine Environments Document'' (the
Document) are based upon simulated discharge scenarios of the possible
combinations listed above, for a total of 5,500 resulting damage
estimate ranges. Each of these 5,500 scenarios has certain
environmental and other conditions that were specified at a
predetermined level to allow for representation of relatively
``simple'' discharges. Basically, the fates and effects portions of the
NRDAM/CME were run, augmented with updated biological and economic data
bases and a restoration cost data set. These scenarios were run with an
augmented natural resource damage assessment model, Coastal and Marine
Environments, Version 1.2 (NRDAM/CME) found at 43 CFR part 11 subpart
D.
For the purposes of the compensation formulas, residual and tidal
currents are assumed to be zero, the discharge scenario is assumed to
be instantaneous at the water surface, seasonal temperatures and wind
speed are ``set at average values'' for the scenario location as
explained in volume I of the document, and wind direction is controlled
to avoid having the discharge move into a different habitat. The oil
products contained in the formulas are: heavy crude oil; light crude
oil; No. 2 fuel oil, diesel, and gasoline. However, there is a
conversion table to determine which commonly discharged oil products
correspond to the types of oils covered in the formulas.
Using the Formula
To use the formulas, the trustee(s) must identify: (1) Whether the
discharge occurred in a marine, estuarine, subtidal, or intertidal
area, as defined in Volume I of the Document; (2) location of
discharge, using the boundaries and definitions of the provinces
provided in Volume I of the Document; (3) the habitat type that
typifies the habitat affected by the discharge, as described in Volume
I of the Document; (4) type of oil discharged; (5) amount discharged
(the user may subtract from the discharge amount the volume of oil that
is cleaned up if the cleanup is from the water and conducted within 24
hours of the onset of the discharge. Because the compensation formulas
are intended for relatively small discharges, it is expected that in
these smaller discharges much of the toxic constituents or the surface
slick will dissipate within 24 hours of discharge. Most of the effects
of the discharge will occur within that 24-hour period. Therefore,
cleanup must be carried out quickly to be effective in avoiding or
minimizing impacts. For these reasons, NOAA is proposing that any oil
removed from the environment within 24 hours from the onset of the
discharge may be subtracted from the total amount discharged to
determine the volume of oil to which the formula is applied. Cleanup
from shorelines shall not be subtracted since the majority of impacts
on shore are immediate. Also, the use of dispersants cannot be factored
in since there likely will be additional effects in the water column as
a result of using them.); and (6) season of discharge based upon date
of discharge and the definitions of the seasons given in the proposed
rule.
Determining Damage Figure
For the purposes of valuing the effects of discharges, the
estuarine and marine waters compensation formula is based upon the
probability of effects in particular province/habitat combinations from
oil discharges through a range of discharge sizes. To determine the
damage figure for a particular discharge, the trustee(s) would first
locate the appropriate table in Appendix A of the Document based upon
province and habitat type using the guidance in Volume I of the
``Compensation Formula for Natural Resource Damage Assessments under
OPA: Oil Spills into Estuarine and Marine Environments.'' The
trustee(s) would then select from that table corresponding to the
season of the discharge, the substance discharged, and the size of the
discharge. The trustee(s) would then compute the dollar figure based on
linear interpolation from the range of discharge sizes listed. To do
this, the trustee(s) takes the ``m'' figure and multiplies that figure
by the number of gallons discharged. The trustee(s) then adds the ``b''
figure number to this first total to get the final damages figure.
For example, for a discharge of 500 gallons of diesel fuel
discharged in the area covered by scenario M01 (NEW ENGLAND OFF SHORE)
on November 1, the trustee(s) would locate the table representing a
discharge of diesel in the fall, follow the M01 line to the appropriate
column (spills between 100 and under 1,000 gallons) and apply the
following formula derived from that table: 500(7.87)+0 = $3,935.00. A
1,000 gallon discharge of heavy crude on November 1 in the same area
would be computed as follows: 1,000(19.7778)+4481 = $24,258.00.
Volume III of the Document provides guidance to the trustee(s) in
calculating losses due to beach and/or shoreline closure. Such losses
would be in addition to the damage figure arrived through the formulas.
Unlike inland (freshwater) systems, there were no data that could
be used to develop damages for lost recreational boating opportunities
within the estuarine/marine compensation formula. However, the
trustee(s) may add such damages to the formula where there is
information to develop such estimates.
Inland Waters Compensation Formula
General
The compensation formula for the freshwater systems covered by OPA
was developed using the same concept as the Estuarine and Marine
Formula. The compensation tables given in Appendix A of Volume I of the
``Compensation Formula for Natural Resource Damage Assessments under
OPA: Oil Spills into Inland (Freshwater) Waters'' (the Document) are
based on simulated scenarios of a total of 100 province/habitat
combinations. These scenarios cover Great Lakes habitats, fast and slow
flowing rivers, streams, brooks, lakes, ponds, and wetlands. In
addition, the tables are grouped by provinces, including: Each of the
Great Lakes and connecting channels, Northeast, Southeast, South
Florida and West Indian, North Central, South Central, Mountain,
Pacific Northwest, Southwest, Alaska, and Pacific Islands. Each
possible province/habitat combination has an associated set of damage
estimates based upon each of the four seasons, five representative
oils, and five possible discharge sizes. The compensation tables given
in Appendix A of the Document are based upon simulated discharge
scenarios of the possible combinations listed above, for a total of
10,000 resulting damage estimate ranges. Each of these 10,000 scenarios
has certain environmental and other conditions that were specified at a
predetermined level to allow for representation of relatively
``simple'' discharges. The computer model used to develop the formula
was a draft of the Type A model for the Great Lakes Environment.
The Natural Resource Damage Assessment Model for the Great Lakes
Environments (NRDAM/GLE) is scheduled for publication in 1994 as a
proposed rule, and thus will not be available to the public at the same
time as the inland waters compensation formula is published. In order
to ensure adequate public review, the version of the draft NRDAM/GLE
used to develop the inland waters formula, along with the technical
documentation, is available from the address given at the front of this
Notice. Anyone wishing to review this material should call the contacts
listed in this Notice and indicate whether a hard copy or electronic
version is preferred. NOAA encourages requestors to ask for the
electronic version [as a WordPerfect 5.1 document in IBM format] to
reduce the expense of printing.
The version of the NRDAM/GLE that is eventually published as a
proposed rule by the U.S. Department of the Interior (DOI) may differ
somewhat from the version used by NOAA to develop the inland waters
formula. Moreover, the NRDAM/GLE will undoubtedly be revised as a
result of the public review and comment of the DOI's rulemaking effort.
Therefore, once the NRDAM/GLE has been issued as a final rule, NOAA
will revise, as necessary, the inland waters compensation formula to
reflect the final version of that computer model. Because NOAA's
proposed rule may be published as a final rule before the NRDAM/GLE is
promulgated as a final rule, NOAA is considering three options: (1)
Publish the inland waters formula as a final rule, with the option to
revise once the NRDAM/GLE is promulgated as a final rule; (2) publish
the inland waters formula as an interim final rule, pending revision
based upon the completion of the NRDAM/GLE; or (3) reserve the inland
waters formula as a proposed rule pending the completion of the NRDAM/
GLE, with the rest of the NOAA rule being published as a final rule.
NOAA seeks comments on these options.
For the purposes of the compensation formulas, residual and tidal
currents are assumed to be zero, the discharge scenario is assumed to
be instantaneous at the water surface, seasonal temperatures and wind
speed are ``set at average values'' for the scenario location as
explained in volume I of the document, and wind direction is controlled
to avoid having the discharge move into a different habitat. The oil
products contained in the formulas are: heavy crude oil; light crude
oil; No. 2 fuel oil, diesel, and gasoline. However, there is a
conversion table to determine which commonly discharged oil products
correspond to the types of oils covered in the formulas.
Using the Formula
To use the formula, the trustee(s) must identify: (1) Location of
discharge to determine in which province the discharge occurred; (2)
the habitat type that typifies the habitat affected by the discharge,
as described in Volume I of the Document; (3) substance discharged; (4)
amount discharged (the user may subtract from the discharge amount the
volume of oil that is cleaned up in certain large river and large lakes
specified in Volume I of the Document if the cleanup is from the water
and conducted within 24 hours of the discharge. Cleanup from shorelines
shall not be subtracted. Also, the use of dispersants cannot be
factored in since there likely will be additional effects in the water
column as a result of using them.); and (5) season of discharge based
upon date of discharge and the definitions of the seasons given in the
proposed rule.
Determining Damage Figure
For the purposes of valuing the effects of discharges, the inland
waters compensation formula is based upon the probability of effects in
particular province/habitat combinations from oil discharges through a
range of discharge sizes. To determine the damage figure for a
particular discharge, the trustee(s) would first locate the appropriate
table in Appendix A of the Document based upon province and habitat
type using the guidance in Volume I of the ``Compensation Formula for
Natural Resource Damage Assessments under OPA: Oil Spills into Inland
(Freshwater) Waters.'' The trustee(s) would then select from that table
corresponding to the season of the discharge, the substance discharged,
and the size of the discharge. The trustee(s) would then compute the
dollar figure based on linear interpolation from the range of discharge
sizes listed. To do this, the trustee(s) finds the ``m'' figure and
multiplies that figure by the number of gallons discharged. The
trustee(s) then adds the ``b intercept'' number to this first total to
get the final damages figure.
For example, a discharge of 6,000 gallons of road oil would result
in the following. The representative oil product for road oil is heavy
crude. The season is spring and the province and habitat are
represented by scenario N73, a Pacific Northwest stream. Using the
formula, m=2.18 and b=13969 for the range of discharges between 5,000
and under 10,000 gallons. The calculation is
(6,000)(2.18)+13969=$27,049. A same size discharge of diesel in the
summer would result in a calculation of: (6,000)(2.255)+16616=$30,146.
Volume III of the Document provides guidance to the trustee(s) in
calculating losses due to beach and/or shoreline closure and boating
closures. Such losses would be in addition to the damage figure arrived
through the formulas.
The trustee(s) may also recover for lost recreational boating
opportunities. Volume III of the Document describes how the trustee(s)
may estimate these losses. Volume III contains average figures for
densities of boating trips for several types of lakes. These densities
are given both for those lakes that provide year-round boating and for
seasonal boating sites.
Volume III of the Document also has an analysis of various
freshwater boating values that sets the average value of an inland
boating day at $36.48. The trustee(s) can then use the densities and
value given in Volume III, together with the area closed to boating to
compute damages for the lost boating opportunities. The formula used to
compute these damages is: V2A2T2 ($36.48) where
V2=density (given in Volume III) of boating trips per square
kilometer per day, A2=area closed in square kilometers,
T2=time area was closed in days, and $36.48=the value per trip per
day.
Responses to Comments
Comment: NOAA received several comments concerning the average
costs of restoration. One commenter asked if it was currently possible
to accurately model the costs of restoration, particularly in Alaska.
One commenter asserted that NOAA should institute a comprehensive data
collection program to acquire sufficient baseline information. Only
then could NOAA implement reliable desktop assessment options in
Alaska. Were NOAA to pursue this course, data collection activities
should be concentrated in high risk areas, such as Cook Inlet and
Prince William Sound.
Another urged assessment procedures to be inexpensive but as
accurate as possible, and based on science. Another commenter asserted
that multiple assessment costs should only be compensable up to the
reasonable cost of a single assessment.
Response: NOAA agrees that economical and accurate scientific
assessment procedures are in the best interest of every party. In
determining the ``average'' costs of restoration for the compensation
formula, an extensive research study was conducted of information
concerning restoration of natural resources in several environments,
including Alaska (See ``Compensation Formula for Natural Resource
Damage Assessments under OPA: Oil Spills into Estuarine and Marine
Environments, Volumes I-IV'' and ``Compensation Formula for Natural
Resource Damage Assessments under OPA: Oil Spills into Inland
(Freshwater) Waters, Volumes I-III''). This information was factored
into the formula in order to reflect the best available information to
date. Of course, all simplified assessments are based upon average
conditions. If the trustee(s) decides that the use of the formulas does
not adequately address the specific circumstances surrounding a
particular discharge, another assessment procedure should be used.
Concerning the reasonable costs of assessments, costs of parallel
assessments are allowed, provided the separate assessments do not
result in double recovery.
Comment: Some commenters were concerned that traditional
comprehensive damage assessment techniques would be inefficient for
small discharges. One commenter recommended an established de minimis
discharge volume that would not lead to a recovery of damages.
Response: The proposed rule provides guidance and criteria for the
trustee(s) to determine the appropriate procedures for a particular
discharge. The decision to proceed with a claim is left to the
discretion of the trustee(s) based upon the information and data
collected through the Preassessment Phase. NOAA's proposed rule does
not adopt the use of a rigid de minimis standard to excuse liability.
OPA addresses the effect and not the nature of a discharge--the
characteristics of a particular environment may render it vulnerable to
even a small discharge of oil. The range of assessment procedures
available to the trustee(s) should ensure that an appropriate type of
assessment will be conducted. NOAA's proposed rule does provide,
however, that the compensation formula is appropriate for determining
damages for discharges of ten or more gallons, up to 50,000 gallons.
Comment: NOAA received several comments recommending specific
factors to include in the simplified assessments, such as season and
location of the discharge, and wind and surface currents present at the
time of the discharge.
Response: NOAA agrees that the inclusion of these factors is
helpful in the assessment. These types of variables are accounted for
in the Type A model. In the compensation formula, wind and surface
currents are predetermined to maintain the scenario of a ``small''
discharge.
Comment: A number of commenters challenged the use of computer
models and compensation tables for damage assessment. One commenter was
opposed to these methods because of insufficient data. Another
commenter speculated that trustees would not use the models for fear of
the passive use valuations being challenged.
Response: NOAA believes that the computer model and compensation
formulas provide a reasonable means for conducting rapid and economical
damage assessments. Based upon extensive review of available
literature, NOAA believes that the data collected for the formula are
sufficient to make a reasonable determination of damages. If the
trustee(s) determines that there are insufficient data for an
appropriate assessment based on the model, an incident-specific
analysis may be appropriate, such as an EDA or CDA. The compensation
formula does not include passive use values at this time. Discharges
that are likely to have resulted in significant reduction for passive
use values should be assessed through a CDA, and possibly an EDA.
Comment: Several commenters supported the development of
compensation tables for the assessment of small discharges. Some
conceded that the tables were in some instances less accurate than
incident-specific assessments but were justified by their cost
effectiveness.
Response: NOAA agrees. Not only is the reduced cost a factor, but
there is a more predictable outcome following a discharge and the
trustee(s) and the RP(s) are able to focus on the actual restoration or
acquisition of the equivalent resources as soon as possible.
Comment: One commenter questioned the reliability of desktop models
that require highly technical, current environmental information that
is not always available. Another commenter agreed and stressed that
such assessment methods must meet clearly defined criteria of
scientific validity. One commenter noted that, although compiling
scientific information would be cumbersome at first, trustees would
come to appreciate the efficiencies of the structured tables that would
facilitate expedited settlements.
Response: NOAA concurs that desktop models are most effective when
the averages that are produced reflect the most current and detailed
information available. For regions where little data are known,
however, models are still capable of producing reasonable estimates.
Although the proposed rule only requires revision of the rule every
five years, the computer model and formulas will be the subject of
continuing evaluation. As new scientific literature becomes available
which enables further refinements to the models by DOI, NOAA will
evaluate whether revisions to the formulas are appropriate in advance
of the five-year requirement.
Comment: One commenter charged that tables and models are based on
statistical averages and by their nature cannot produce values that are
reasonably related to actual costs. As such, they are not authorized by
OPA. However, the commenter continued to state that small discharges
with limited effects may not call for a Comprehensive Damage Assessment
(CDA).
Response: NOAA believes that the development of formulas and models
is within the scope of its authority under OPA. Although based on
statistical averages, the values do reasonably assess restoration/
replacement costs and are therefore authorized by OPA. The computer
models and compensation formulas are appropriate for small discharges
of limited effect where a comprehensive damage assessment may be
impracticable.
Comment: One commenter noted that restoration is a new and rapidly
changing field where there are few case studies from which to draw
information and calculate damages. Therefore, restoration costs may
have to be determined on a case-by-case basis.
Response: NOAA agrees with this statement when the trustee(s) is
conducting either an EDA or CDA.
Comment: One commenter recommended that NOAA's proposed regulations
should address only the framework for comprehensive and expedited
damage assessments, especially where OPA, unlike CERCLA, does not
specifically call for the preparation of regulations for simplified
assessment methods. Further, the feasibility of simplified assessment
procedures should be explored in the context of a negotiated
rulemaking, comprised of representatives from industry, insurers,
environmental groups and other trustees.
Response: NOAA disagrees with the notion that OPA limits this
rulemaking to EDA or CDA procedures. Simplified assessments provide an
opportunity for quick recoveries and therefore lower transaction costs
to both the trustee(s) and the RP(s). The use of negotiated rulemaking
for development of the compensation formula was considered to be very
time consuming, expensive, and potentially resulting in damages based
more upon compromise than restoration costs and compensable values.
Comment: One commenter noted that areas that are presently
``biologically degraded'' will be retarded in the recovery following a
discharge. NOAA's suggestion that the compensation table could be used
where there may be difficulty in ascertaining precise injury, seems to
equate difficulty with insignificance. This approach will encourage the
trustee(s) to use a cookbook approach rather than a fact-based
assessment.
Response: In the selection of the appropriate assessment
procedures, the trustee(s), at the time following the discharge, will
be in the best position to determine the most appropriate procedure for
the discharge conditions.
Comment: Two commenters expressed concern that tables may under-
value resources in industrialized or biologically degraded areas.
Another commenter particularly noted that any table should fully value
urban resources. One commenter felt that NOAA is being optimistic in
that the tables can cover many issues.
Response: The Estuarine and Marine Environments Compensation
Formula is based upon 55 representative province/habitat combinations,
ranging from Northern Maine to the Alaska Coast, the Hawaiian and
Pacific Islands. Since the compensation formula is based upon averages,
it is impossible to include all known coastal habitats and every
combination of discharges. However, several industrialized areas are
specifically represented, i.e., Boston Harbor, New York Harbor, Mobile
Bay, etc.
The Inland (Freshwater) Waters Compensation Formula is based upon
100 representative province/habitat combinations representing the Great
Lakes and other inland waters by type, i.e., river, lake, fast flowing
stream, etc.
By comparing the habitat of the actual discharge with the province
and specific habitat used to estimate the damages in the formula, the
trustee(s) should, in most cases, find the most applicable scenario.
NOAA emphasizes that the primary advantages of a compensation formula
are for simplicity and cost-effectiveness. In addition, any time a
simplified assessment is used, it is unlikely that the exact
circumstances of an actual discharge will be represented, only
approximated. In cases where the circumstances of an actual discharge
are determined to be far out of the bounds of the compensation formula,
the trustee(s) should consider the use of another assessment procedure,
i.e., EDA or CDA.
Comment: One commenter suggested using tables in small discharges
to establish base damages, and conducting more incident-specific
assessments for larger discharges or sensitive areas. Others indicated
that tables would be too simplistic and have limited value.
Response: The compensation formula is specifically designed for use
in most discharges of under 50,000 gallons. It is likely that
discharges over 50,000 gallons would result in injuries that would be
more appropriately addressed by another assessment procedure. Again,
the trustee(s) will determine if a specific discharge may be
appropriately assessed by the compensation formula. It is well within
NOAA's statutory authority to include compensation formulas with the
proposed rule.
Comment: One commenter was concerned with the formulas that give no
credit for responsible cleanup. Another commenter cited that no
adjustment is made for short-term versus long-term injuries. This
commenter also stated that there is no difference for companies that
take remedial action to clean up or reduce injuries of a discharge. The
commenter stated that the lack of these adjustments is a disincentive
to RPs. Others indicated that the tables should be based upon the
assumption that the total cargo was discharged, requiring the RP to
produce evidence to the contrary.
Response: The formulas introduced in this proposed rule provide
that the gallon amount used is the estimated amount of oil left in the
water environment 24 hours after the onset of the discharge. Hence, if
oil is immediately contained and cleaned up, the ten gallon threshold
of the compensation formula may not be reached. Discharges of highly
volatile oil products may result in significant negative injuries to
the environment, even if cleaned up within 24 hours. Such discharges
would be more appropriately assessed using another assessment
procedure. This should provide a significant incentive for RP(s) to
begin immediate cleanup and yet allow for the assessment of injuries
resulting from the actual discharge. Discharges that may result in
long-term injuries may be more appropriately assessed through the use
of another assessment procedure. NOAA is confident that the lead
response agency and the RP(s) can and will identify the amount of oil
discharged to a degree of confidence necessary to conduct a damage
assessment, either through the formulas or other assessment procedure.
Comment: Some commenters stated formulas should not be based simply
on mortality counts or gallons discharged. Yet another stated that, if
a dollar per gallon formula is used, NOAA should consider toxicity of
discharged oil as well as persistence. Another indicated that any
compensation formula based on destroyed flora or fauna ignores the rate
of natural replenishment. This commenter also stated that damages
should not be based on artificial valuation of ``commercially valueless
creatures.''
Response: The compensation formulas introduced in the proposed rule
are based upon gallons discharged, restoration costs (where
appropriate), restocking costs, and average direct use values of the
affected resources. Restoration costs are only included when the
scenario is one in which anticipated habitat restoration efforts would
have lessened the overall damage figure, i.e., done more good than
harm. Since the formula represents small discharges few scenarios
resulted in habitat restoration costs. However, restocking costs of
fish, shellfish, and wildlife are included when it is expected that
there would be a loss of those resources. Restocking costs and direct
use values could only be calculated for resources that had a current
value that could be determined.
In addition, the formulas provide for five different representative
types of oil: (1) Heavy crude; (2) light crude; (3) No. 2 fuel oil; (4)
diesel oil; and (5) gasoline. If the oil discharged is not one of those
types of oil, the trustee(s) is given guidance on which representative
oil is the closest to the type of oil discharged. The data used to
develop the formula recognize the different toxicity properties of each
representative oil.
Comment: Some commenters strongly objected to the inclusion of
passive use values in simplified assessments. One noted that passive
use values are ``particularly ill-suited'' in the context of small
discharges, but NOAA should not rule them out for those discharges. The
model or table will not capture passive use losses well, but NOAA
should continue to explore inclusion of them in such a table or model
as the number of passive use value studies is rapidly increasing.
Response: Through a lengthy, deliberative, and exhausting process
for the review of contingent valuation, NOAA has determined that the
formulas in the proposed rule will not include passive use values. In
addition, the formulas are designed for small discharges that would
generally not have a significant effect upon passive use values. Small
discharges likely to have a significant effect upon passive use values,
as determined by the trustee(s), should be assessed through a different
procedure.
NOAA is considering how passive use values might be included in the
compensation formulas and is requesting comments on this issue.
Comment: One commenter stated that use of a compensation table
would avoid the cost of performing an assessment and represent a
savings to the RP. The commenter stated the RP should not have the
ability to challenge a table by using ``real data.'' However, some
collection of ``real data'' between the RP(s) and trustee(s) should be
allowed. RP-collected data should not be admissible in court, unless
submitted to the trustee(s) as a part of the administrative record.
Response: One of the advantages of using the compensation formula
is the reduced cost. However, the proposed rule specifically allows the
RP(s) to request a more comprehensive damage assessment, provided those
costs are borne up front by the RP(s). Where the trustee(s) and the
RP(s) determine it necessary to collect additional data, another
assessment procedure can be used. As outlined in this proposed rule,
all data to be considered in the restoration process must be submitted
to the administrative record. Once the formulas are final, including
possible judicial review, NOAA believes that the bases of the formulas
will no longer be subject to challenge, although the trustee(s) may be
challenged concerning the data inputs, i.e., size of discharge, type of
oil, etc. To avoid unnecessary litigation, NOAA encourages the RP(s)
and the trustee(s) to enter into enforceable agreements to use the
formulas to determine the appropriate damages.
Comment: One commenter stated that any compensation formulas or
computer modeling must include a continuous ``reality check'' of
observed effects and results for assessment awards. Another commenter
took the opposite view, favoring compensation tables only if they are
not subject to unilateral ``reality checks.''
Response: NOAA believes that the proposed compensation formulas
represent the best available information at the time of compilation in
terms of the fate and effect of oil, the likely biological effects, and
the average restoration costs and direct use values, for a variety of
discharges. As stated earlier, if the circumstances of an actual
discharge are significantly out of the parameters of the formulas, an
alternative assessment procedure should be used. Again, any simplified
assessment procedure will not mirror reality in every single discharge.
The proposed rule does provide, however, for NOAA to review the
procedures every five years. This will allow the formulas to be kept
current on biological, toxicological, and valuation information.
Comment: One commenter stated that formulas should not be used as
an assessment tool. Another cited a compensation formula as a theory of
``liquidated damages'' or ``worker's compensation'' recovery, being
contrary to the statutory injunctions of OPA. Also cited was the Zoe
Colocotroni case as discrediting compensation formulas.
Response: NOAA disagrees that compensation formulas are not
appropriate as assessment tools, provided the formulas are based upon
the measure of damages required by OPA. These include: The costs of
restoring, rehabilitating, replacing, or acquiring the equivalent of
the damaged resources; the diminution of value; plus the reasonable
costs of conducting the assessment. The proposed formula is based upon
that premise, although it is likely that costs of conducting the
assessment will be very low. As stated throughout the proposed rule,
the formula is one of four procedures available to the trustee(s). If
the particular circumstances of the discharge are beyond the scope of
the formula, another procedure should be used.
Comment: One commenter recommended that any simplified damage
assessment technique be based on the equation that: Total Damages =
Cost of Restoration + Diminution of Value of the Resource Pending
Restoration + Cost of Conducting the Assessment.
Response: NOAA agrees that a simplified damage assessment procedure
based on such an equation satisfies the criteria of being simple,
accurate, reliable, and understandable and is in accordance with OPA.
Type A Model
Subpart E Preamble
NOAA is proposing that a natural resource trustee(s) may use the
Natural Resource Damage Assessment Model for Coastal and Marine
Environments (NRDAM/CME), Version 1.2, known as the Type A model,
developed by the U.S. Department of the Interior (DOI), for damage
assessments under OPA. The Type A model is described at 43 CFR Part 11,
subpart D. The Type A model may be used when the conditions of the
discharge are sufficiently similar to the conditions of 43 CFR 11.33(b)
to make the Type A model a useful method for the discharge of concern.
The trustee(s) shall publish the DARP stating the intent to use the
NRDAM/CME and identifying the inputs to be used in that application.
The public will have thirty calendar days in which to comment on the
use of the NRDAM/CME. If the trustee(s) has set out, as part of
prespill planning, the circumstances under which the NRDAM/CME would be
used and a different process for public input in that use, the process
identified in the prespill plan may be used, subject to the provisions
for prespill planning in Sec. 990.16 of this part.
It is likely that NOAA will also recommend the new set of computer
models being developed by DOI for use in estimating damages for
injuries to natural resources resulting from relatively minor
discharges of oil. The current computer model for use in coastal and
marine environments is being revised by DOI to comply with the court's
decision in Colorado v. DOI and as part of the statutorily-mandated
review and update. The court in Colorado v. DOI, held that natural
resource damage assessments should be based upon costs to restore,
replace, rehabilitate, or acquire the equivalent of the injured
resources, plus the diminution of all reliably calculated compensable
values pending recovery. The current model is still in effect pending
those revisions. DOI is also developing a second computer model for use
in the Great Lakes and their connecting channels.
These computer models use the same basic approach to estimating
damages. Each model is composed of several major components modeling
the physical and chemical fate of the substance discharged, spread of
the substance throughout the environment, the present and future
biological effects of the discharge, the restoration approach and its
costs where appropriate, and the value of natural resources and
services lost pending recovery.
These new computer models, are under development through DOI, but
are not yet available for public review. NOAA is working closely with
DOI in its development of these computer models. Based upon an initial
evaluation of these models, it is likely that NOAA will recommend that
they are available procedures that the trustee(s) may choose to use
under OPA.
Response to Comments
``Use of Computer Models''
Comment: Several commenters noted that simplified procedures are
most applicable for small discharges that would otherwise not be
addressed because the cost of conducting an assessment might be greater
than the ultimate recovery. Commenters noted that the use of simplified
procedures would be less costly to the trustee(s) as well as the RP(s),
and will result in more timely recoveries.
Response: NOAA agrees that a major advantage of a simplified
assessment procedure like a computer model would allow for more timely
and cost-effective assessments for a majority of oil discharges.
Comment: Concerning the use of a computer model, commenters
indicated that it would more accurately evaluate variables than a
simplistic formula. Models incorporating a number of key variables
could be a useful assessment tool and provide a cost-effective,
reliable, and rapid assessment.
Response: NOAA agrees that a computer model that allows a large
range of variables to be considered in a standardized fashion is a
valuable assessment tool.
Comment: Several commenters indicated that a computer model must be
based upon an accurate estimate of restoration costs and that such
costs must bear a reliable relationship both to actual injuries to
natural resources as a result of the discharge and restoration actions.
Response: NOAA agrees that a computer model would look at the most
appropriate type of restoration action typically considered for the
type of incident being modelled. This action would be based on the
average types of expected injuries. The model would then calculate the
average, regional costs of carrying out such an action.
Comment: Several commenters expressed concern about the use of a
model because of the possibility that it would underestimate the
damages. Commenters in this category, therefore, argued for the
inclusion of passive use values. According to these commenters, even if
the resource does recover, there will be some diminution in value over
the recovery period. Similarly, passive use values may remain impaired/
diminished until recovery.
Other commenters, however, argued that the factors taken into
account by a model should be limited. Since OPA is compensatory and not
punitive, a model should not incorporate values that may be difficult
to measure. Accordingly, these commenters would not allow the use of
any passive use values. Also, one commenter stated a model would be
improper for large values.
Response: NOAA points out that the court's direction in the Ohio
and Colorado decisions was to include in all types of assessments all
reliably calculated values. Therefore, to the extent possible, these
values would be included in a computer model.
Comment: One commenter stated that, where multiple trustees are
involved in one discharge, the RP is unlikely to agree to a damage
figure derived from a computer model or compensation table until all
the trustees agree that the resulting damage figure is the sole measure
of damages for all injuries. Otherwise, the commenter noted that the RP
would be faced with paying damages to satisfy the computer model or
table figure while still facing claims for specific restoration
projects, all resulting from the same discharge.
Response: NOAA notes that the danger of double recovery can be
avoided by the RP(s) scrutinizing a natural resource and/or injury upon
which damage claims are made by several trustees. Such review would
show whether the same resource injury is being claimed by the various
trustees.
Comment: Some commenters sug
FR Doc. 94-225 Natural Resource Damage Assessments
gested NOAA develop and propose a
similar computer model for rivers, streams, lakes, and interior
wetlands.
Response: NOAA is currently developing the inland compensation
formula for relatively minor discharges in inland waters (see
discussion elsewhere in this preamble). DOI is also investigating
possible additional damage assessment methods for use as inland Type A
procedures. NOAA will work with DOI in this effort to the extent
possible.
``DOI's Type A Model''
Comment: Several commenters stated that the revised Type A model,
under development by DOI, must contain more accurate data than the
current Type A model. It should be area specific and reflect the actual
species densities and distributions, as well as variations in those
distributions and densities. The commenter noted that entire coastlines
should not be classified within the model as one biologically
homogenous unit. Some commenters identified factors that the table or
model should take into account. These factors include: The scarcity of
a resource or the presence of a critical species in a given area;
seasonal differences; the size of the discharge; and the cumulative
effects of small discharges over time. In addition, the data should be
periodically updated.
Response: NOAA notes that DOI is updating the data considered in
the Type A model and collecting all available information. As for
including such things as regional or local information on species
densities and distributions, NOAA is helping to gather such data, but
notes that such detailed information is only available for certain
well-studied areas that represent a relatively small portion of the
entire coastal and marine environments of the United States and its
territories.
Comment: Some commenters noted that the original Type A model
severely underestimated damages in its use of a flawed economic
valuation and that the damages should be significant enough to act as a
deterrent.
Response: The court in Colorado v. DOI instructed DOI to include in
the Type A models, damages based upon costs to restore, replace,
rehabilitate, or acquire the equivalent of the injured resource, plus
the diminution of all reliably calculated direct use and passive use
values pending the recovery of the injured natural resources and their
services. DOI has stated that the Type A models will incorporate these
components of the damages to the extent practicable. The Type A models
are compensatory, not punitive, so they are not intended to serve as
deterrents.
Comment: One commenter stated that the model should provide for
frequent information updating, and should require public input in the
process.
Response: NOAA agrees that the Type A model should be periodically
updated through a public review and comment process. In fact, section
301(c) of CERCLA requires a review and revision, as appropriate, every
two years. DOI is currently conducting such a revision of the Type A
model for coastal and marine environments, along with the Colorado
court's suggested revisions.
Expedited Damage Assessment
Subpart F Preamble
General
Purpose/Scope
Included in the range of proposed damage assessment procedures is
the expedited damage assessment (EDA). EDA reflects a damage assessment
approach that is intermediate between the current Type A model and
proposed CDA procedures. This approach recognizes that the trustee(s)
may want to address more effects than currently available in the Type A
model or proposed compensation formula, particularly for inland
discharges. The approach also recognizes that the size, location, and
timing of a given discharge may not warrant the broad, extensive
procedures associated with a CDA. An EDA encompasses a variety of
methods that permit the trustee(s) to determine and quantify injury
based on limited, focused studies. The trustee(s) is accorded
considerable discretion in determining which methods are the most
suitable for a given EDA. Accordingly, the EDA should be viewed as a
dynamic process rather than a rigid, step-by-step approach.
The goal of an EDA is to initiate restoration as quickly as
possible. This goal can be achieved by truncating the injury
determination and quantification process. Using limited, focused
studies, the trustee(s) may determine and quantify injury in one of two
general approaches. First, the trustee(s) may supplement the Type A
model with additional injury or compensable value studies for those
natural resources and/or services not specifically included in the
model's assumptions. Second, the trustee(s) may undertake an attenuated
CDA. The latter approach involves the trustee(s) selecting only certain
key resources and/or services that warrant injury assessment and
conducting focused studies to quantify injuries to determine the
restoration approach and compensable values. The proposed rule
encourages the trustee(s) to begin initial restoration planning early
in the assessment/restoration process in order to focus efforts on
developing a restoration approach. These early restoration
alternatives, however, may be modified as the injury determination and
quantification data is refined.
The EDA process allows the trustee(s) to exercise his best
professional judgment to narrow the scope of studies conducted during
the Assessment/Restoration Phase to a few key natural resources and/or
services. To help select the appropriate resources for inclusion, the
proposed rule recommends that the trustee(s) focus on those natural
resources and/or services that are of commercial, recreational or
ecological importance, or of special significance. The trustee(s) may
determine, for example, that studies focusing only on one, or few
resources (i.e., murres or wetlands), will produce a restoration
approach sufficient to restore the affected resources and/or services.
The proposed rule also provides guidance for focusing the injury
determination and quantification components.
In examining the relationship of the EDA with the other proposed
assessment procedures, it is helpful to think in terms of what EDA is
not. Large or unusually destructive discharges may require a broad
suite of extensive studies over a multi-year period to determine the
nature and extent of the injuries to natural resources and/or services
and calculate compensable values. While it is important to have a
comprehensive damage assessment option, NOAA believes that most
assessments will not require an extensive, often litigation-driven,
approach. Through this proposed rule, NOAA has interpreted Congress'
apparent desire to spend less time rediscovering that a discharge is
harmful to the environment, and focus more efforts on restoration
measures. EDA provides a vehicle for that purpose.
Finally, the proposed rule provides that the trustee(s) should
complete the natural resource and/or service injury determination/
quantification process and develop a restoration approach within two
years from the date of the discharge, where possible. This time-frame
is not required, but an assessment taking longer to reach this point is
not expedited.
Guidance in Selecting the EDA Approach
In evaluating whether an EDA is appropriate for a given discharge,
the trustee(s) should take into account the guidance provided by the
proposed rule. This guidance is not intended to be rigidly applied.
Rather, the trustee(s) should exercise best professional judgment in
evaluating the usefulness of this guidance for any given discharge.
Near the close of the Preassessment Phase, the trustee(s) will
examine the information regarding the discharge in light of the
guidance and decide whether to select the EDA approach or another
assessment procedure. In all cases, this decision is reserved for the
trustee(s). See discussion earlier in this preamble.
The Expedited Damage Assessment Approach
EDA Objectives: The steps involved in the EDA or CDA damage
assessment are similar. The scope of effort associated with each step,
however, differs considerably between the two procedures.
The objectives of an EDA are to: (1) Expeditiously determine and
quantify injuries to selected natural resources and/or services
resulting from a discharge using limited, focused studies and baseline
or reference/control information, and (2) provide the basis for
restoration and recovery of natural resources and/or services. To
achieve these objectives, the EDA procedure consists of: (1) Injury
determination; (2) injury quantification; (3) restoration component;
and (4) compensable values determination.
Injury Determination
General
Injury resulting from (or caused by) the discharge of oil has been
determined when the trustee(s) has demonstrated that: (1) With direct
exposure, (a) the natural resource was exposed; (b) there is a pathway
between the discharge and exposed natural resource; and (c) the
exposure of oil, its components, or by-products has been shown by
rigorous and appropriate scientific methodology to have an adverse
effect on the natural resource in laboratory experiments or the field;
or (2) in the absence of direct exposure, (a) the adverse effect on or
impaired/diminished use of a natural resource has been shown by
rigorous and appropriate scientific methodology; and (b) the adverse
effect on or impaired/diminished use of the natural resource would not
have occurred but for the fact of the discharge or threat of a
discharge. The trustee(s) should establish baseline or reference/
control conditions from which changes in environmental and biological
parameters may be measured.
Contributing Factor: Where multiple factors may have contributed to
an indivisible injury to a natural resource and/or service, the
discharge of oil may be considered a contributing factor to the injury.
Exposure
Once the discharge of oil has been documented, the next step
involves either confirmation of exposure or threat of exposure to the
natural resources to the oil. Confirmation and exposure entails
determining the amount of product discharged into the environment.
Initial estimates developed in the Preassessment Phase should now be
verified or modified as appropriate. Where practicable, the trustee(s)
should rely on figures developed by the On-Scene Coordinator (OSC) and
request continual updates. The OSC may also be requested to provide a
final estimate of the amount discharged, recovered, or removed. The
trustee(s), however, may conduct additional surveys to determine the
amount of oil discharged into the environment, should the figures
provided by the OSC prove insufficient.
Using field data collected thus far, the next step should be to
identify exposure pathways. Field data that may help the trustee(s)
accomplish this step include documentation of the areal extent of the
oil and collection of water samples along the oil contamination
gradient. The trustee(s) may rely on models, in conjunction with
limited field data, to document exposure pathways. These models should
be relatively simple and acceptable to the scientific and regulatory
community. The trustee(s) should confirm that natural resources were in
fact exposed to oil.
Where the injury is an indirect adverse effect or impaired/
diminished use, the trustee(s) should begin to document the nature and
extent of such injury. An example of impaired/diminished use is where a
recreational beach is closed in anticipation of oiling. An example of
an indirect adverse effect is where exposure to oil has resulted in the
reduction or elimination of food chain resources thereby resulting in
starvation of a higher trophic level resource (e.g., birds). If such
injuries are readily quantifiable, studies that document the injury are
appropriate for an EDA. Determination of impaired/dimished use or
adverse effects is addressed in the section entitled Injury
Determination: Scope of Injuries.
Identify Natural Resources: The trustee(s) should identify those
natural resources for which injury determination and quantification
will be conducted. Eligible natural resources will include those which
are of commercial, recreational, ecological importance, or of special
significance.
Initiate Early Restoration Planning: At this point in the process,
the trustee(s) should initiate early restoration planning. To
supplement the information on restoration provided in this section, the
trustee(s) should refer to the restoration discussion in subpart G of
the preamble, in the proposed rule, and the Restoration Guidance
Document.
The trustee(s) should develop a restoration scoping statement to
focus the planning process. The scoping statement should identify those
restoration alternatives that the trustee(s) may consider to remedy
discharge effects, including source control and remediation where
appropriate. The ``natural recovery'' alternative should be
specifically addressed. In addition, the trustee(s) may consider
acquisition of the equivalent natural resources as an alternative, but
only in light of OPA's preference for the other alternatives. The
scoping statement will rely on information derived from the
Preassessment Phase and exposure determination, and may be developed
along a roughly parallel time line as the DARP. (See preamble
discussion of the DARP in subpart C.)
Scope of Injuries
The scope of injuries in an EDA are limited relative to a CDA.
Injuries to natural resources and/or services that may be appropriate
for an EDA include, but are not limited to, mortality, and sublethal
effects that are relatively easy to document. Categories of injury that
meet the acceptance criteria in Sec. 990.71(e) of the proposed rule and
are appropriate for an EDA are currently being developed.
With respect to fish and wildlife resources, the trustee(s) should
estimate direct mortality using body counts in the affected areas in
accordance with standard field procedures (such as the ``fish-kill''
investigation methods described by the American Fisheries Society).
(See Part II (Fish-Kill Counting Guidelines) of ``Monetary Values of
Freshwater Fish and Fish-Kill Counting Guidelines,'' American Fisheries
Society Special Publication Number 13, 1992.) The trustee(s) should
correct the estimates using established procedures in the literature
along with ``off-the-shelf'' models. Published water and sediment
toxicity data can be used in the models. In addition, toxicity tests
may be conducted on the discharged oil to provide specific information
for the model on the effects of the discharged oil at the estimated
concentrations on the species and life stages of concern. The toxicity
tests, however, should be time- and cost-effective. Mortality may also
be determined by baseline and reference/control comparisons.
Mortality estimates may be less applicable to vegetation associated
with natural resource habitats. Oiled vegetation may suffer
considerable sublethal injury including, but not limited to, reduction
in growth rates, loss of above-ground biomass, and reproductive
impairment. These injuries, especially the loss of plant biomass, may
result in changes in species diversity and abundance utilizing the
habitat. Nevertheless, chronic contamination or a severe discharge may
result in direct mortality. The trustee(s) may need to undertake
limited surveys to verify early vegetative mortality, as well as
mortality likely with time.
As mentioned earlier, mortality resulting from a discharge may also
be indirect. The trustee(s) may include indirect mortality in the
injury focus provided there is baseline information documenting such
injury or the indirect mortality can be determined with limited,
focused studies. Measures of indirect mortality include, but are not
limited to, starvation; failure to nest; hatching failure; and loss of
critical habitat.
Sublethal effects as measures of injury should be carefully
selected in an EDA. Only those that can be determined using limited,
focused studies and that are expected to result in quantifiable
injuries should be included. Sublethal effects that may meet these
requirements include, but are not limited to, impairment of growth,
reproduction, development and behavior.
The trustee(s) should also consider injuries to services. The first
step in determining injury to the services is to inventory the services
provided by a natural resource prior to discharge and identify those
services affected or expected to be affected by the discharge. Services
commonly affected by a discharge of oil to the natural environment
include recreational, commercial, ecological, and those of special
significance as defined earlier in this proposed rule. Recreational
services provided by natural systems include, but are not limited to,
provision of recreational fishing, boating, boat mooring, bathing,
beach use, wildlife viewing, sightseeing, and hunting opportunities.
Commercial services include finfish and shellfish harvest, as well as
marine transportation, marine development, and industrial and municipal
water use. Commercial services differ from recreational, ecological,
and passive use services in that some parties other than the trustee(s)
(e.g., commercial fishermen) may make claims related to the diminution
of value. Therefore, the potential for overlap between the
trustee's(s') and a private claim should be carefully considered.
Typical ecological services (i.e., biological diversity, habitat
protection, food chain transfer, contaminant control/ assimilation,
water quality/quantity aesthetics) could include wetland functions,
such as water quality enhancement, waterfowl nesting sites, and estuary
functions, such as provision of nurseries for fin and shellfish or
habitat to endangered or threatened species. Services provided by
resources of special significance include, but are not limited to,
subsistence fishing, education, scientific and cultural research.
Not all services inventoried will suffer injury or a reduction in
their flow. The trustee(s), therefore, must identify those services to
be addressed by the EDA. For example, wetlands provide a range of
services including, but not limited to flood control, fish nurseries,
and recreational opportunities. A discharge that results in oiling of
above ground wetland vegetation may leave the roots intact, therefore
leaving the flood control service unaffected. The oiling of the
emergent vegetation, however, could substantially reduce the bird
viewing opportunities. The trustee(s) should include in the EDA only
those services that have actually been interrupted or lost.
Injury Quantification
General
The trustee(s) should quantify injuries to natural resources and/or
services identified through injury determination. Based on the services
identified as interrupted or lost, the trustee(s) should select a
subset of this list for detailed analysis. The trustee(s) should
determine the duration of lost or diminished services. This is
accomplished by comparing the level of baseline or reference services
(i.e., the conditions as they existed prior or adjacent to the
discharge and would have continued to exist in the future but for the
discharge) to the level of services after the discharge. In some cases,
baseline or reference service flow estimates may not be available. For
example, state and federal agencies may not maintain data on commercial
fish catch at the level of detail required for economic damage
assessment. Where critical information is lacking, the trustee(s) must
decide whether to: (1) Continue with the EDA in the absence of the
compensable value estimate for the given service flow; or (2)
reconsider the appropriateness of the EDA approach, given the magnitude
or importance of the service flow in question.
Develop Restoration Component
The trustee(s) should develop the restoration component of the DARP
at this phase in the process. The restoration component should include
an analysis of restoration alternatives and the preferred restoration
approach for each injured resource or service. The trustee(s) should
refer to subpart G for a full discussion on the restoration component
of the DARP.
Compensable Values Component
The compensable values component for an EDA contains the study
design to estimate the values of the lost services. In this part of the
EDA, the trustee(s) will consider the interim lost services associated
with the restoration component and identify available methodologies for
estimating these values.
While an EDA does not necessarily preclude large-scale original
studies such as a site-specific travel cost model, economic assessment
of lost values should be accomplished by limited, focused efforts where
possible. The EDA, therefore, may rely on simplified valuation models
or the applications of benefits transfer. As discussed here and in the
``Compensable Values'' section of the preamble accompanying subpart G,
a wide range of methods exist for estimating lost resource values.
Applicability of market valuation techniques will depend on site-
specific factors, such as the types of services affected and data
availability. Important and commonly-applied approaches include: Market
price and appraisal value; travel cost models; random utility models,
and hedonic property valuation models. The trustee(s) may determine
that economic methods currently do not exist to estimate the damages
resulting from the loss or reduction in one or more of the important
service flow categories. Where the trustee(s) anticipates that
implementing a particular technique will exceed a reasonable time to
accomplish an EDA or will result in implementation costs that are
unreasonable relative to the expected level of damages, the trustee(s)
should consider selecting another damage assessment technique. Factors
influencing this decision will include increase in the precision of the
damage assessment, and the time and budget required to complete such
research.
Once the extent of the lost services has been estimated, economic
values must be assigned to these services to estimate the compensable
values. For some categories of economic damage, it will be possible to
conduct site-specific analyses. For example, the damages associated
with the closure of a marine transportation corridor will, in most
instances, be estimated using site-specific data. In other cases, the
trustee(s) will apply estimates, equations, models, or data from
existing valuation studies, through the use of benefits transfer.
Benefits transfer may be used where the trustee(s) determines that
benefit estimates are available to support a defensible benefits
transfer (see discussion of benefits transfer in the preamble
discussion of valuation methodologies). If such estimates do not exist,
the trustee(s) may undertake a cost-effective study at the site.
The EDA procedure is a new concept, that is designed to facilitate
the damage assessment process for a large number of discharges. It
represents a hybrid approach that entails either supplementing the Type
A model with limited, focused studies, or studying key natural
resources and/or services for which limited, focused studies will be
undertaken. NOAA wishes to solicit comments regarding the scope and
applicability of the EDA.
Response to Comments
Comment: NOAA received comments supporting the use of an Expedited
Damage Assessment (EDA) procedure so long as it could make accurate
estimates and meet, in an expedited way, other natural resource damage
assessment criteria.
Response: The proposed rule provides for an EDA in this subpart and
meets those criteria.
Comprehensive Damage Assessment
Subpart G Preamble
General
Purpose/Scope
The Comprehensive Damage Assessment (CDA) is the most detailed of
the assessment procedures available to the trustee(s). The purposes of
a CDA are to: (1) Comprehensively determine the nature and extent of
injury to natural resources and/or services; (2) develop a restoration
plan to remedy that injury; and (3) determine the total compensable
values for discharges requiring a complex, prolonged assessment/
restoration process as deemed necessary by the trustee(s). Since there
is no single CDA approach appropriate for every discharge, the
trustee(s) must tailor each CDA to the specific oil discharge
circumstances.
A CDA consists of four components, including Injury Determination,
Injury Quantification, Restoration Planning, and Compensable Values
Determination. After completion of a CDA, a Report of Assessment, which
includes the determinations made in each of these components, must be
prepared.
CDA Costs
CDA costs include those costs associated with injury determination
and quantification, restoration planning, and compensable values
determination. Costs incurred should be limited to those the trustee(s)
considers necessary. Such costs should be supported by appropriate
records and documentation in the administrative record, and must not
reflect regular activities performed by the trustee(s) in the
management of natural resources and/or services not related to the
discharge of oil.
Report of Assessment
At the conclusion of a CDA, the natural resource trustee(s) should
document all pertinent activities and decisions in the administrative
record and prepare the Report of Assessment. The Report of Assessment
is the basis of the CDA claim. The Report of Assessment is the DARP, as
modified based upon comments received during the public comment period.
The Report of Assessment contains the trustee's(s') selected
restoration approach. The administrative record should contain the
rationale for conclusions regarding each component of the CDA process.
Injury Determination
Purpose/Scope
The purpose of Injury Determination in a CDA is to verify or modify
the nature of the injury to natural resources and/or services resulting
from the discharge of oil. Injury determination in a CDA should be made
for natural resources and/or services that can be restored or for which
the public can be compensated.
Should the trustee(s) be able to document the nature of the injury
to a natural resource and/or service resulting from the discharge of
oil, he should then proceed to Injury Quantification. If the trustee(s)
is unable to determine such injury, further assessment efforts should
be terminated and the results of the Injury Determination documented in
the Report of Assessment.
Objectives and Study Designs
Based on the information regarding the discharge and environmental
setting collected in the Preassessment Phase, the trustee(s) should
first develop objectives governing the overall CDA and for the
individual component studies comprising the CDA. These objectives
provide direction for the design of the CDA and each study. Once the
objectives are defined, the trustee(s) should develop appropriate study
designs. Study designs address the level of effort for each given
study. The study design may include, but is not limited to,
identification of: (1) The hypotheses or questions posed; (2) changes
in injury that may be considered statistically and environmentally
significant; (3) expected endpoints, i.e., effects, for each resource
and/or service; (4) the appropriate assessment methods for each
endpoint; (5) data quality objectives to ensure that data are collected
and analyzed effectively; (6) sampling design that provides the logical
structure on how to collect the data; and (7) the statistical analyses
to test the hypotheses. Guidance on study designs can be found in the
Injury Determination and Quantification Guidance Document, currently
being prepared.
Injury Determination
Once the individual study designs are complete, the trustee(s)
should then document the nature of the injury resulting from the
discharge of oil. Injury resulting from (or caused by) the discharge of
oil has been determined when the trustee(s) has demonstrated that: (1)
With direct exposure, (a) the natural resource was exposed; (b) there
is a pathway between the discharge and exposed natural resource; and
(c) the exposure of oil, its components, or by-products has been shown
by rigorous and appropriate scientific methodology to have an adverse
effect on the natural resource in laboratory experiments or the field;
or (2) in the absence of direct exposure, (a) the adverse effect on or
impaired/diminished use of a natural resource has been shown by
rigorous and appropriate scientific methodology; and (b) the adverse
effect on or impaired/diminished use of the natural resource would not
have occurred but for the fact of the discharge or threat of a
discharge.
Where multiple factors may have contributed to an indivisible
injury to a natural resource and/or service, the discharge of oil may
be considered a contributing factor to the injury.
The trustee(s) should identify the pertinent exposure pathways, and
relevant injuries to natural resources and/or services. The definitions
of exposure, injury, and causality in the proposed rule are different,
but not inconsistent, than that found in the CERCLA natural resource
damage assessment rule, known as the Type B rule (43 CFR 11.62(b)-(f)).
Guidance on natural resource and service injuries exclusive to oil
discharges can be found in the Injury Determination and Quantification
Guidance Document, currently being prepared.
The method for determining injury in this proposed rule is also
different than that of the CERCLA rule. These methods should be chosen
based on the capability of the method to demonstrate an effect on or
impaired/diminished use of a natural resource. For any injury to be
considered such under this proposed rule, it must satisfy the following
acceptance criteria: (1) For natural resources, (i) the exposure to
oil, its components, or by-products has been demonstrated to cause an
adverse effect on the natural resource in laboratory experiments or the
field; and (ii) the measurement for a natural resource adverse effect
is cost-effective and can be obtained through the application of a
scientifically rigorous and appropriate methodology. Categories of
natural resource and service injury for the CDA (as well as the EDA)
that meet the acceptance criteria specified for discharges of oil are
also currently being developed.
The public is asked to review these changes relative to the CERCLA
rule. Constructive comments should reflect the flexibility and
discretion accommodated to the trustee(s) throughout the OPA proposed
rule.
Injury Quantification
Purpose/Scope
The purpose of injury quantification is to determine the effects on
natural resources and/or services resulting from the discharge as
defined in the proposed rule. The proposed rule allows the trustee(s)
to measure the change in either a natural resource itself, or directly
in a service. The trustee(s) is encouraged to use whichever approach
proves to be most appropriate for a natural resource and/or service
being considered. In either case, Injury Quantification usually
requires comparisons to baseline or reference/control conditions, or
some other known measures. Such comparisons are based upon the
completion of any response actions, and will depend on the recovery
period of both resources and/or services.
Should the trustee(s) be able to quantify injury to natural
resources and/or services resulting from the discharge of oil, the
trustee(s) should then proceed to the restoration component. If the
trustee(s) is unable to quantify such injury, further assessment
efforts should be terminated and the results of the Injury
Quantification documented in the Report of Assessment. Quantification
of Injury: In certain circumstances, the trustee(s) may decide to
quantify natural resource injury and translate that injury to the
reduction in services. If the trustee(s) bases quantification on
natural resources injury, he should determine the: (1) Extent to which
a natural resource injury has occurred; (2) extent to which the injured
natural resources differ from baseline or reference/control conditions;
(3) services normally produced by the injured natural resources and (4)
reduction of services resulting from the discharge of oil.
However, where there are insufficient data to quantify natural
resource injury or where there is no associated injured natural
resource, the trustee(s) may directly quantify the reduction in the
services resulting from the discharge.
Even where natural resource injury does occur, direct
quantification of the reduction in services may be the approach of
choice. In these cases, the reduction in services may be a measure of
injury when the: (1) Extent of change in the services resulting from
natural resource injuries can be determined without also calculating
the extent of change in the resources; and (2) services to be
determined are expected to provide a better indication of compensable
values caused by the natural resources injury than would direct
quantification of the resources themselves.
If the trustee(s) bases quantification on injury to services, he
should determine the: (1) Extent of impaired/diminished services; and
(2) extent to which the level of impaired/diminished services differs
from baseline and/or reference/control conditions.
Quantification Methods
Guidance on quantification methods can be found in the Injury
Determination and Quantification Guidance Document, currently being
prepared. Quantification methods generally include before/after (using
baseline data) and reference/control-impact study designs, using
combined (at the community/population level) and/or individual (at the
organism/biomarker level) injuries. Since particular quantification
methods cannot be recommended to the trustee(s) at this time, guidance
on specific natural resources and/or services to quantify can be
provided. Such selection can be based upon the: (1) Extent to which a
particular natural resource and/or service is affected; (2) extent to
which a given natural resource and/or service can be used to represent
a broad range of related resources or services; (3) consistency of the
quantification method with the requirements of the compensable values
determination component to be used; (4) ability to quantify changes in
a given natural resource and/or service at reasonable cost; and (5)
preliminary estimates of services.
Injury quantification for a CDA requires information on the extent
of injured natural resources and/or services. Information needed for
natural resource injury includes: (1) Total area or volume, if
appropriate, or quantity of natural resources and/or services affected;
(2) degree to which natural resources and/or services are affected; (3)
ability of a natural resources and/or service to recover; (4)
proportion of a natural resources and/or service affected; and (5)
services that the injured natural resources provide to other resources
and humans. Information needed for injured natural resource services
include: (1) a list of the relevant natural resource services; (2)
availability and characteristics of those services; and (3) information
on past and current services. Sources for this information include
government agencies, trade associations, academic organizations,
resident population, response personnel, RP(s), experts, databases, and
the open literature.
Recovery Analysis
The trustee(s) should estimate the time necessary for natural
recovery without restoration efforts and beyond response activities.
Recovery is defined as a return of natural resources and/or services to
baseline or comparable conditions within the limits of natural or other
(human-induced) variability. It is possible for the recovery of
resource services to occur long before or after natural resources
recovery is complete. However, in many cases, resource services are
directly derived from natural resources and the recovery of resource
services should correspond closely with the recovery of the natural
resource.
Response to Comments
Comment: Some commenters suggested that injury should be
hypothesized or justified within a reasonable period (e.g., one to two
weeks).
Response: NOAA disagrees. A good faith effort to expeditiously
complete an injury hypothesis should be made following a discharge.
Nonetheless, it would be unreasonable to require completion of such an
initial assessment within a specific interval, because conditions and
circumstances will vary widely from site-to-site and situation-to-
situation. Further, all concerned should recognize that an initial
hypothesis of injury is just that. Because not all injuries will occur
immediately following a discharge, and those that do may not be
discernable until some time later, the hypothesis may be subject to
significant, and perhaps repeated, revision over time.
Comment: One commenter was concerned that statistical analysis be
used judiciously and also indicated that although specific statistical
analysis cannot be prescribed, statistical criteria can be set forth.
Response: NOAA agrees with this comment and is suggesting judicious
use of statistics.
Comment: Many commenters wanted NOAA to carefully consider the
ultimate use of the data collected so as to be cost- and time-
effective.
Response: NOAA understands this concern all too well. Data use is
integral to the development of damage assessment strategies and
designs. Therefore, NOAA is recommending that data use be specified
early on in the process as part of the objectives of the study as well
as in data quality objectives in the study design.
Comments: One commenter indicated that NOAA does not adequately
address the assessment of the impact on services on natural resource
injury. Another commenter contends that actual, proven services are all
that are included in OPA for quantification purposes. Some commenters
suggested that natural resource damage assessment should include injury
to archaeological and historical services in particular.
Response: To assert natural resource damages under OPA, injury to
natural resources and/or services must be demonstrated. NOAA recognizes
that there is both direct and indirect injury. The trustee(s) should
account for both forms so long as such injuries are relevant to
restoration and compensation efforts. Further, all damages, except
those that are considered speculative, are included under OPA. Injuries
to natural resource services may include archaeological sites and other
resources of historical significance.
Comment: One commenter stated that natural resources are valued in
terms of the services or functions they provide to society, either
directly by providing services to humans or indirectly by providing
services to other natural resources.
Response: NOAA agrees and states in the definition of ``services''
that natural resources provide a wide range of functions that include,
but are not limited to, functions provided to society.
Restoration
Subpart H--Preamble Language
General
Purpose
OPA provides the trustee(s) with the following range of
alternatives to remedy injury to natural resources and/or services:
restoration, rehabilitation, replacement, or acquisition of the
equivalent natural resources and/or services. The proposed rule
provides that natural recovery is also an alternative that must be
considered. If the trustee(s) deems that natural recovery is not an
acceptable alternative for a particular incident, i.e., cannot be
achieved given the scope, scale, and timing of natural recovery, then
restoration, rehabilitation, replacement, or acquisition of equivalent
natural resources and/or services should be examined. For each
alternative, there may be various options or procedures to accomplish
that alternative. Each of the alternatives and options mentioned above
may be considered by itself or combined in a number of ways.
The purposes of the restoration planning process are to: (1)
Determine the most appropriate restoration alternatives for the
recovery of injured natural resources and/or services resulting from a
discharge of oil; and (2) estimate the costs of implementing
restoration.
The goal of restoration is to return the injured natural resources
and/or services to their baseline conditions. Site-specific restoration
objectives should be established and prioritized throughout the
assessment/restoration planning process to provide a blueprint for
restoring the injured natural resources and/or services to baseline or
comparable conditions. These objectives should be clear and identify
the desired outcome.
Restoration Component
The first step in the development of a restoration component by the
trustee(s) is to develop a scoping statement. The scoping statement
identifies natural resources and/or services of concern, as well as
potential restoration alternatives to focus the restoration planning
process. The trustee(s) should develop preliminary restoration
alternatives that address specific injuries.
As the assessment process progresses and significant new
information becomes available, the trustee(s) should begin developing
the restoration component of the DARP. The restoration component,
incorporating preliminary results of the injury determination and
quantification studies, should be based upon the scoping statement. The
DARP will provide the means for soliciting public comments on the
proposed restoration alternatives.
Coordination
Early coordination and cooperation is essential in restoration as
well as assessment where multiple trustees are involved. When multiple
trustee involvement is indicated, a Memorandum of Understanding (MOU)
should be considered to clearly delineate trustee responsibilities. An
example of such an MOU is given in appendix A of the proposed rule.
Participation of the RP(s) early on in restoration planning is also
encouraged in the proposed rule, particularly if the RP(s) is active in
the assessment process. The knowledge and expertise of the RP(s) could
be useful to the trustee(s). The trustee(s), however, has the ultimate
responsibility for all restoration activities and should develop a
joint enforceable agreement or Memorandum of Agreement (MOA) describing
the specific responsibilities of all parties if the RP(s) is selected
to participate. An example of such an MOA is given in appendix B in the
proposed rule.
Emergency Restoration
Emergency restoration prior to the development of the restoration
component is permitted where immediate action is necessary to avoid
irreversible loss, or to prevent or reduce continuing danger to natural
resources and/or services. These actions are described in detail in the
preamble discussion of subpart B--Preassessment Phase.
Restoration Costs
Restoration costs include the costs of implementing the restoration
plan. Both direct and indirect restoration costs, including those
associated with pre-settlement, will be used in the determination of
the total damages.
Restoration Component Development
Requirements
In developing the restoration component for a CDA, the trustee(s)
should: Develop a restoration scoping statement; develop the
restoration component of the DARP; and estimate the costs of
implementing the restoration component described below. The trustee(s)
should also address NEPA implementation requirements relative to the
restoration component.
Scoping Statement
During the preliminary stage of the assessment/restoration planning
process, the trustee(s) should develop a restoration scoping statement.
The scoping statement is intended to serve as a tool to focus the
restoration planning process. The scoping statement should identify
those potential restoration alternatives that the trustee(s) may
consider as potential actions to remedy the effects of the discharge of
oil. The scoping statement will rely on information provided during the
injury determination and quantification studies and may be developed
along a slightly delayed but parallel time line as those components.
This offset but parallel development will facilitate coordination
between the injury determination/quantification and restoration
planning, thereby encouraging the collection of data for both
processes.
The scoping statement should include a summary of the natural
resources and/or services of concern, an evaluation of the
circumstances of the discharge, and the expected injured natural
resources and/or services. Next, the scoping statement should identify
the range of alternatives available to the trustee(s). Where
appropriate, source control and remediation should be considered.
Finally, the scoping statement should identify any opportunity to pool
the recovery with other similar recoveries in a given region in order
to develop a more encompassing restoration plan.
As a tool for the trustee(s), the scoping statement should help
identify the most appropriate restoration alternatives as well as
clarify additional information needs for the restoration component.
While some of this information may be gathered from existing sources,
much may be gleaned from the results of injury determination and
quantification studies. It is expected, therefore, that the
alternatives identified in the scoping statement will evolve as new
information from the assessment process becomes available. The scoping
statement should be included in the administrative record of the
assessment.
If prespill plans or similar supporting documents have been
developed that address the injured natural resources and/or services
and the public was fully involved in the prespill planning, the
trustee(s) may decide that a scoping statement is not needed. However,
the trustee(s) should begin developing the restoration component at an
early stage.
Restoration Component of the DARP
The restoration component of the DARP should be developed during
the latter stage of the injury quantification component. It should be
based upon the scoping statement as well as the results of injury
determination/quantification studies, and feasibility or pilot studies
that may affect the analysis of a given restoration alternative.
The restoration component of the DARP should consist of three broad
components. First, it should include an analysis of the restoration
alternatives considered for each natural resource and/or service and
provide the basis for estimating the restoration costs associated with
each alternative. Included in this analysis should be an estimate of
the rate and degree of recovery for the injured natural resources and/
or services depending upon a given restoration alternative. Second, the
restoration component should identify the preferred approach for each
injured natural resource and/or service under consideration for
restoration. Finally, the restoration component should include the
results of any feasibility or pilot studies proposed. To the extent
practicable, the restoration component should consider opportunities
for pooling recoveries from multiple cases and identify other statutory
review and consultation requirements.
The restoration component of the DARP will be made available for at
least a thirty calendar day public review and comment period, as
provided by Sec. 990.32(c)(4) of the proposed rule. The trustee(s)
should consider the comments received on this plan and make any
revisions necessary. Significant changes, in the judgment of the
trustee(s), should also be made available to the public.
The restoration component will be the basis for the Post-Assessment
Restoration Plan that will be developed after compensation is received.
The Post-Assessment Restoration Plan must reflect the amount of the
actual damage award. This Final Restoration Plan is discussed in detail
in the preamble discussion of the Post-Assessment Phase.
In order to provide for the timely development of the DARP, the
injury determination, quantification, and restoration components should
be conducted concurrently, where practicable. The proposed rule
provides that the trustee(s) will develop, where practicable, the
restoration component early in the assessment/restoration process so
that the trustee(s) can focus efforts towards restoring,
rehabilitating, replacing, or acquiring the equivalent natural
resources and/or services. Estimate Restoration Costs: Costs of
restoration will include direct, as well as indirect (e.g., overhead)
costs. Both direct and indirect restoration costs will be incurred by
the trustee(s) throughout the damage assessment/restoration process.
The costs of the trustee's(s') recommended restoration component will
be used in the determination of damages. Also, the anticipated costs of
the public review of the Post-assessment Restoration Plan, the plan
refined after the damage award, should be included in the damage figure
that the trustee(s) presents to the RP(s). These are part of the
planning and implementation costs estimated by the trustee(s) when
developing the restoration component.
Direct costs are those that the financial management system of the
trustee(s) records on a site-specific basis and hence are costs that
are readily allocated to the damage claim made against the RP(s) for
that incident. Examples of direct restoration costs associated with
preliminary survey work and planning prior to implementation of
restoration include: Site visits; chemical/physical/biological
analyses; restoration plan development; human health and safety plan;
and community relations program; trustee oversight of restoration
activities by the RP(s); and site plan. Examples of direct costs
associated with specific restoration actions include: contaminant
removal; habitat reconstruction and creation; replanting and
restocking; physical and chemical treatment; any trustee oversight of
any restoration activities of the RP(s); and bioremediation. Other
examples of direct restoration costs include salaries and benefits,
travel costs, materials and supplies purchased specifically for the
implementation of the selected alternative, equipment lease costs,
building related costs if a building is leased or purchased for the
sole purpose of implementing the selected alternative, and payments for
goods and services furnished by private companies or other government
agencies under contract with the trustee agency. Direct costs can
include all costs of other entities performing actions for the trustee
agency. These costs include a contractor's overhead, labor and material
costs, which the contractor bills directly to the trustee agency, if
such costs are paid by the trustee(s). Other direct costs might include
capital, labor, and materials, as well as administrative costs
associated with the development of task orders for engineering design,
evaluation and selection of contractors for project management and
implementation, provision of relevant QA, and other independent
technical/analytical support functions. The cost estimates for
restoration shall include not only the cost of planning and
implementing the recommended restoration component, but the costs of a
monitoring program, mid-course corrections, and feasibility studies,
and other elements the trustee(s) determines appropriate to carry out
his restoration activities, including the oversight of any actions
taken by the RP(s).
Indirect costs are support costs, compared to a private company's
overhead, which support assessments or restoration actions, but which
cannot be directly accounted for on a site-specific basis. Such
indirect costs may include support services to those involved in the
assessment and restoration process, e.g., facilities or personnel,
budgeting, procurement, auditing, or other administrative management
services, as well as policy formulation and assessment/restoration
program costs that are not accounted for on a site-specific basis. In
the related context of cost recovery under CERCLA, the courts have
upheld the recovery of indirect costs. See, e.g., United States v. R.W.
Mever, Inc., 889 F.2d 1497, 1502-04 (6th Cir. 1989); United States v.
Hardage, 750 F. Supp. 1460, 1504 (W.D. Tex. 1990), aff'd, 982 F.2d 1436
(10th Cir. 1992); United States v. American Cyanamid Co., 786 F. Supp.
152, 159 (D.R.I. 1992); United States v. Bell Petroleum Services, Inc.,
734 F. Supp. 771, 782-83 (W.D. Tex. 1990). The trustee(s) may calculate
indirect costs in accordance with any reasonably sound method.
The estimated restoration costs make up that component of the
damage claim representing the costs to restore, replace, rehabilitate,
or acquire the equivalent of the injured natural resources and/or
services. These estimates are to be documented in the administrative
record and included in the DARP.
Phased Restoration Planning
Because of the large scale and present rudimentary knowledge of the
science of restoration, the trustee(s) should consider undertaking
restoration planning in phases. Phased planning and implementation is
proposed through an Adaptive Management Approach (AMA). AMA considers
the following steps: (1) Design and implement the initial phase; (2)
monitor the results; (3) evaluate and interpret the results; (4)
recommend and prioritize follow-up studies; and (5) decide needs for
next phase. This process will facilitate the learning process because
early phases will generate information about how well procedures work,
what problems develop, and what unforeseen benefits might be
capitalized upon in designing future phases. AMA will allow the
trustee(s) to make reasoned assessments of the outcome of the actions
taken so as to protect existing resource values and ensure likelihood
of successful restoration. This approach is a mechanism for dealing
with uncertainty and variability in managing resources. It involves a
process whereby alternatives can be suggested and tested (i.e., pilot
projects) often in small scale before undertaking full scale
restoration. Results of initial experiments are then evaluated to
select the approach for later projects. Later phases will benefit from
information generated in earlier phases. While adaptive management
depends on results from previous work, new projects can be started
before previous phases prove successful, provided the new phase
contains everything thought necessary for successful restoration.
Significant costs may be incurred as a result of the phased
approach to restoration simply as a result of repeated mobilization and
demobilization of necessary equipment, personnel and support functions.
However, the needs of the resource should outweigh any need for human
expediency. The phased approach was developed to respond to a complex
planning milieu as is often the case in a CDA. A programmatic NEPA
Environmental Impact Statement (EIS) with subsequent environmental
assessments serves as the appropriate framework for timely restoration.
A phased approach will allow the trustee(s) to work within funding
constraints, which may enable them to implement complementary projects
more easily than collaborating on a single, large project.
Analysis and Selection of Restoration Alternatives
Restoration Alternatives
The trustee(s) may choose natural recovery, restoration,
rehabilitation, replacement, acquisition of the equivalent, or a
combination thereof in deciding on the most appropriate restoration
alternatives to select for particular natural resources and/or services
injured by the discharge of oil. These alternatives are described
herein and in the Restoration Guidance Document available from the
address given at the front of this preamble.
(1) Natural Recovery: The natural recovery alternative (comparable
to the ``No Action Alternative'') is based upon the process of natural
succession following a discharge whereby the injured resource is left
to recover without any intervention by man. This alternative may not
always result in restoring natural resources and/or services to their
baseline conditions, but should always be considered. Natural recovery
may be selected when: (1) There is evidence that the natural recovery
process will be more effective than other available restoration
alternatives; (2) the resulting natural resources and/or services are
predicted to resemble the original, within the constraints of natural
or other (human-induced) variability, in a time frame not significantly
different from that resulting from human intervention; (3) other
natural resources and/or services will not be adversely affected prior
to the recovery of those originally injured resources and/or services;
and (4) there are no threats to human health and safety from the length
of time for natural recovery.
Where it is clear that natural recovery can restore injured natural
resources and/or services to baseline conditions, additional
restoration measures may not be justified. Nevertheless, because some
natural resources and/or services will eventually recover on their own
does not necessarily mean that restoration should be excluded. Since
one intent of OPA is restoring the environment from the effects of a
discharge of oil, the public should not unduly bear the burden of
natural healing if there are reasonable alternatives available to
hasten the recovery. The trustee(s) should document the decision on the
adequacy of natural recovery in the administrative record.
The ability to determine when natural recovery is optimal may be
constrained by the quality and quantity of baseline information.
Nevertheless, the trustee(s) should attempt to estimate the rate of
natural recovery for each relevant injured natural resource and/or
service based on the information derived from damage assessment and
restoration studies, the scientific literature, and other sources. If
it appears that natural recovery may effectively restore natural
resources and/or services without significant, concomitant adverse
effects, then the trustee(s) should select the natural recovery
alternative. However, if it appears that natural recovery may not
effectively achieve baseline or comparable conditions, the trustee(s)
should consider other restoration alternatives.
(2) Restoration: ``Restoration'' means actions undertaken to return
injured natural resources and/or services to their baseline conditions.
Generally, restoration relates to man's efforts to enhance the recovery
process. Restoration is usually distinguished from response as being
performed after the completion of cleanup activities. Response is
commonly defined as action to contain and clean up oil immediately
following a discharge or to protect natural resources and/or services
by a response agency. Restoration actions, such as the removal of
contaminated resources, may be performed during and after response to
facilitate the recovery of relevant natural resources and/or services.
In the present context, restoration performed at the location of impact
is referred to as ``direct restoration.'' The other alternatives
identified below may result in beneficial, but not duplicative, natural
resources and/or services to those injured, and are therefore described
as ``compensatory restoration.''
(3) Rehabilitation: ``Rehabilitation'' refers to actions to bring
injured natural resources and/or services to a state different from
baseline conditions but still beneficial to the environment and public.
This alternative is particularly important when direct restoration is
technically or economically infeasible, but the affected site retains
the potential to support alternative valuable natural resources and/or
services. The definition of rehabilitation encompasses enhancement
actions taken on an affected site to increase one or more values,
possibly at the expense of other values. This alternative should be
distinguished from the ``natural recovery'' alternative, which relies
exclusively upon natural recovery unassisted by man.
(4) Replacement: ``Replacement'' refers to actions that substitute
natural resources and/or services that provide the same or comparable
natural resources and/or services as those injured. Replacement, as
opposed to ``direct'' restoration, results from restoration actions
taken away from the affected site to furnish or create equivalent
natural resources and/or services within the region. For example,
habitats away from the discharge site may be created to provide
equivalent services within the region in terms of fish and wildlife
production. Injured services provided by natural resources that might
be replaced include those of recreational, commercial, or ecological
importance, or those of special significance.
(5) Acquisition of Equivalent: ``Acquisition of equivalent
resources'' refers to obtaining natural resources and/or services that
the trustee(s) determines are comparable to those injured. Equivalent
natural resources should be acquired to hasten recovery, and protect
and maintain the natural resources affected by a discharge. Acquisition
of equivalent resources is distinguished from replacement of resources
by the fact that the acquired resources already exist rather than being
created or enhanced. ``Acquisition of equivalent resources'' addresses
specifically ``resources,'' not ``services.'' Acquisition of equivalent
resources should only be used when the trustee(s) has determined that
restoration, rehabilitation, or replacement of specific natural
resources is technically infeasible or the cost is grossly
disproportionate to the value of the resources involved.
(6) Combination of Alternatives: Each alternative discussed above
may be considered individually or combined in various ways; depending
upon feasibility, environmental-effectiveness, and relative cost
considerations. Also, each alternative may be implemented through one
or more options or procedures selected by the trustee(s). When
mentioned, alternatives imply associated options. Differences among
combinations of alternatives and the related options within each
alternative could be based upon the severity of the natural resource
injuries, quality and quantity of knowledge about recovery, expected
effectiveness of the alternatives, or the environmental or human
significance of the injured natural resources and/or services.
Analysis of Restoration Alternatives
As the results of the injury and quantification studies become
available, the trustee(s) should revise the list of restoration
alternatives developed. As this list is revised, the trustee(s) should
analyze each alternative taking into account not only the feasibility,
but also the effectiveness and relative cost (described below). The
choice of restoration alternatives is influenced by the nature of the
injuries to the natural resources and/or services, and the extent to
which immediate action is taken to remedy those injuries. Also, the
restoration alternatives should seek to ensure the recovery of injured
natural resources and/or services. Examples of services provided by the
natural resources that might be returned to baseline conditions include
human uses (e.g., recreational, commercial), ecological, or those of
special significance. Certain services that are of cultural
significance (e.g., archaeological sites) are not typically living,
renewable resources and have no capacity to heal themselves. Therefore,
such services cannot recover ``naturally'' and, to the extent
restoration is practicable, will need human intervention.
Certain factors should be considered for each restoration
alternative. If, based upon these considerations, an alternative is
unacceptable, it will be eliminated from further consideration. The
evaluation of the relevant factors should be documented in the
administrative record. When the DARP is made publicly available, the
trustee(s) should provide for the administrative record a brief
description of how the restoration alternatives contained in the DARP
comply with these factors.
(1) Feasibility: The key factor to consider in selecting
restoration alternatives is feasibility. Feasibility depends upon
whether an action is possible given certain constraints. These
constraints include, but are not limited to: Availability of services,
materials and equipment; expertise; construction and operational
limitations; need or capability for future restoration; and
administrative, legal, or regulatory requirements.
Where practicable, the trustee(s) should consider methods currently
available, i.e., proven methods should take preference over unproven
methods. Under many circumstances, however, existing methods will need
to be modified for a given discharge. For example, the trustee(s) may
propose providing artificial nesting sites for a particular species of
bird to replenish the population. While there is ample information on
the nesting requirements of a similar species of bird, little
information is available about the nesting requirements of the injured
bird species. The trustee(s), therefore, may have to rely upon the
requirements of the similar species in designing nesting site
alternatives for the injured species.
(2) Environmental Effectiveness: Once the trustee(s) determines
that a restoration alternative is feasible, the trustee(s) should then
evaluate the environmental effectiveness of the alternative.
Effectiveness deals with the general question of whether an action
accomplishes the goals and objectives of restoration. Effectiveness is
dependent upon the: (1) Extent to which the proposed alternative can
return natural resources and/or services to acceptable conditions; (2)
extent to which the proposed alternative causes additional injury; (3)
extent to which the proposed alternative improves the rate of recovery
and success; and (4) level of risk and uncertainty in the success of
the proposed alternative.
(3) Relative Cost: Simultaneous with the environmental
effectiveness determination, the trustee(s) should evaluate the
relationship of the expected costs of implementing the alternative
relative to other alternatives and to their anticipated benefits. This
requires that the trustee(s) consider, among other things, the: (1)
Significance of the natural resource and/or service to the environment
and public; (2) extent to which the proposed alternative benefits more
than one natural resource and/or service; (3) cost of the proposed
alternative; (4) relationship of the expected costs to the expected
benefits; and (5) level of risk and uncertainty in the cost-benefit
analysis.
Total damages will depend on the sum of compensable value and
restoration costs. Often, there will be tradeoffs between compensable
value and restoration costs. For example, faster-paced and more-
intensive restoration activities may reduce the associated compensable
values, e.g., interim lost use values, but may do so at the expense of
substantially higher restoration costs. In some cases, there may be
sufficient data to demonstrate that some (combinations of) restoration
alternatives would result in substantially lower total damages than
others. NOAA seeks comment on the following questions. Where
restoration data on costs and benefits are sufficient, should the
trustee(s) be required to select the (combination of) restoration
alternatives that minimize total damages? If not, should the trustee(s)
be required to explain the rationale for selecting (a combination of)
restoration alternatives that do not minimize total damages?
Cost evaluation is not a straight economic cost/benefit analysis.
Rather, it is primarily a consideration of qualitative, rather than
quantitative, factors. There may be overriding policy considerations
that would cause the trustee(s) to consider certain ``collateral
benefits.'' For example, if a scenario involves certain non-renewable
natural resources, i.e., an endangered species or a resource of
cultural significance, the costs of restoration may appear, under a
straight cost/benefit analysis, to be grossly disproportionate to the
value of the benefit of restoration over natural recovery. However, the
possibility of continuing or additional effects to these nonrenewable
resources may require that restoration actions be taken.
In this regard, NOAA's approach is similar to the one proposed
earlier by the U.S. Department of the Interior (DOI). In April of 1991,
DOI proposed revisions to its damage assessment rule to comply with the
ruling in the Ohio decision. In those proposed revisions, DOI stated
that the trustee(s) should:
consider the relationship of the expected costs of an alternative to
the benefits from the implementation of that alternative, both in
terms of the recovery of the resource and the benefits to the public
that would result. This consideration is not intended to be a
straight cost/benefit analysis. The trustee should weigh
circumstances unique to each assessment against the expected
alternative costs.
56 FR at 19758.
Basically, the trustee(s) must judge the advantage or desirability
of a particular restoration alternative in terms of the expected costs
of implementing the alternative compared to the benefit of that
alternative. When possible, the trustee(s) should attempt to quantify
such benefits. However, NOAA recognizes that situations will arise when
it is more reasonable for the trustee(s) to forgo such quantification.
For example, if the cost of restoration is $3 million, and it will cost
more than that to quantify the benefits, the trustee(s) should rely on
a qualitative approach, i.e., one that considers the other factors
discussed in this subpart. Those factors include technical feasibility,
effectiveness of the restoration component, nonrenewability of the
resource (i.e., archaeological resource), and the significance or
uniqueness of the resource (i.e., an endangered species or a resource
of cultural significance). Further, any analysis must take into account
discounting and uncertainty, as well as other factors deemed relevant
by the trustee(s). (These concepts are discussed in a later section of
this preamble.)
Depending upon the type of discharge and nature and extent of the
injury, the proposed alternatives and related costs may vary
significantly. A determination that expected costs are reasonable when
compared to the anticipated benefits includes a careful comparison of
direct and indirect expenses. Of all alternatives that achieve similar
benefits and meet the goals and objectives of restoration, the most
cost-effective alternative should be chosen. A restoration alternative
will be cost-effective if it is determined to have the lowest costs
expressed in present value for a given amount of benefits. If the
benefits can be quantified in dollars, that dollar figure should be
discounted to present value. However, should the benefits be quantified
in terms other than dollar values, those benefits should also be
discounted to present value.
This proposed rule does not define the term ``grossly
disproportionate'' as a numeric ratio. Instead, NOAA adopts the
approach recommended by DOI in its April 1991 proposed rulemaking. The
trustee(s) must consider all of the factors discussed in this subpart
in selecting the most appropriate alternative. However, it is not
required that each factor be given the same weight for each discharge
situation or even for each alternative considered. As stated in the DOI
proposed rule,
* * * the various alternatives considered may address and balance
these factors in different ways. In practice, the alternative
selected by the trustee as the most appropriate might not satisfy
all the considerations, yet still be ``correct'' for the purposes of
the assessment. The trustee, after considering all the relevant
factors, may make a selection that gives greater weight to some
factors over others.
56 FR at 19757.
In addition, the trustee(s) must document this consideration in the
administrative record. Such documentation will constitute the grossly
disproportionate determination. Selection of Restoration Alternatives:
Based upon the analysis of the restoration alternatives for each
category of injured natural resources and/or services, the trustee(s)
should select the alternative or some combination thereof that best
meets the needs of each injured natural resource and/or service based
upon the factors listed above. The trustee(s) should then develop the
restoration component of the DARP based upon this selection for each
natural resource and/or service.
The restoration component is that part of the DARP that will be
used to estimate the restoration costs. The restoration component
should also contain the site-specific objectives of the restoration and
an initial listing of priorities of natural resources and/or services
of concern. The restoration component and its estimated costs of the
DARP then goes out for public review and comment.
Feasibility (Pilot) Studies
Because restoration science is continually evolving, and injuries
to natural resources and/or services may be unique on a site-specific
basis, restoration alternatives for certain natural resources and/or
services may be limited. Therefore, the scoping statement may
conceptually identify small-scale, focused feasibility or pilot studies
where the trustee(s) finds that a particular restoration alternative
needs to be tested to determine whether implementation is not only
technically and economically feasible, but also effective. The costs
associated with the implementation of these studies are part of the
costs of developing the DARP.
Where possible, the scoping statement should conceptually identify
feasibility or pilot studies the trustee(s) may require to evaluate
alternatives. The scoping statement should also provide the public with
notice that additional feasibility or pilot studies, associated with
the development of restoration alternatives, may be conducted
throughout the development of the DARP.
As appropriate, the trustee(s) should coordinate with the OSC prior
to proceeding with any feasibility or pilot studies during the response
phas
FR Doc. 94-225 Natural Resource Damage Assessments
e to ensure that such studies are not incompatible with response
activities. Anticipated studies become part of the DARP and costs of
these actions become part of the trustee's(s') damage claim.
Evaluation of Recovery and Success of Restoration
Definition
Recovery is defined in the proposed rule as the return of the
injured natural resources and/or services to baseline or comparable
conditions, within the limits of natural or other (human-induced)
variability. This definition recognizes the inherent tendency for
natural resources and/or services characteristics to vary over space
and time. Defining restoration goals, selecting appropriate criteria
for monitoring goal achievement, identifying appropriate performance
standards (endpoints), and measuring levels of achievement of these
standards are necessary to determine success in restoration. Particular
attention should be paid to reestablishing and maintaining the
diversity of the site(s) as evidence of the total health of the
recovering system. The recovered condition is not required to be
identical to the baseline or reference/control condition; however, it
should not be functionally different from that condition.
Monitoring
Monitoring should be an integral part of the recovery
implementation process. Recovery cannot be properly established without
a well-designed and executed monitoring plan. Every natural resource
and/or service is unique, which makes it inappropriate to propose fixed
monitoring plans for a generic habitat or biological resource.
Nevertheless, there are several general principles that apply to any
such effort: (1) Monitoring should be sufficiently long to ensure
recovery to a stable condition; (2) all relevant components of the
affected environment should be monitored, as it relates to the
restoration alternative; (3) the progress of recovery should be
compared with natural changes occurring in similar unaffected reference
or control areas; (4) sampling should be designed to provide
statistically significant and defensible results; and (5) the
monitoring plan should be sufficiently flexible to permit mid-course
corrections if the need arises. In the event that maintenance is
required to ensure success, the decision on the need for such
maintenance should be part of the restoration component.
Mid-Course Corrections
The restoration component should incorporate provisions allowing
for mid-course corrections. Monitoring and evaluating recovery will
enable the trustee(s) to determine when mid-course corrections are
necessary. Mid-course corrections should be based upon, but not limited
to, the nature and extent of injuries suffered by the natural resources
and/or services, actual effectiveness of the restoration alternatives,
and results of monitoring.
The possibility of the need for mid-course corrections should be
considered in the restoration component. It could be that feasibility
or pilot studies will obviate the need for mid-course corrections. In
some cases, settlement agreements have specifically addressed this
issue. One possible approach is to include in a settlement agreement a
``reopener'' clause, i.e., a specific provision to revisit an issue if
it becomes necessary at a future time. Another possibility is for the
RP(s) to deposit an agreed-upon amount of money in an escrow account to
cover future restoration actions that could not be fully developed at
the time of the settlement. These funds would then be used for these
future actions, or would revert to the RP(s) if not needed for
restoration.
Responses to Comments
Comment: One commenter indicated there may be some confusion with
semantics in the terms used for and hierarchy of restoration,
rehabilitation, replacement, or acquisition of the equivalent.
Response: NOAA hopes to minimize confusion by defining all terms in
the proposed rule. Further, the proposed rule does not suggest a
hierarchy of restoration alternatives, except in the case of
acquisition of equivalent resources, and leaves such prioritization to
the discretion of the trustee(s) on a case-by-case basis.
Comment: One commenter suggested that the assessment process should
focus on natural resources that may actually benefit from restoration.
The commenter noted that such an approach would reduce contention
between the trustee(s) and RP(s), and reassure the public that its
resources are receiving attention.
Response: NOAA agrees with the suggestion that restoration should
be implemented only where the trustee(s) determines that such efforts
would benefit the natural resources and/or services. However, the
trustee(s) cannot totally ignore those natural resources that either
will recover naturally or are not recoverable. The trustee(s) must
still seek restoration of or compensation for these interim lost
services.
Comment: One commenter stated that the primary objective of the
restoration process should be the timely restoration of the affected
natural resources to levels that are adequate to support the services
they normally provide to the biological community in general and humans
in particular.
Response: NOAA agrees with the commenter based on the assumption
that ``normally'' means baseline or reference/control conditions.
Comment: A few commenters noted that restoration, beyond what is
needed to return to baseline conditions and specific numeric levels,
would be an inefficient use and an over-investment of society's
economic resources. Such efforts would result in a net loss in economic
welfare, which is inconsistent with section 1006(d)(1) of OPA.
Response: The goal of restoration is the recovery of the natural
resources and/or services to baseline conditions in the most cost-
effective and beneficial manner. Recovery refers to structural or
functional equivalence, which is left to the discretion of the
trustee(s). If the result of the trustee(s)' actions are to somewhat
enhance the level of services to a level higher than existed before the
discharge, such an action may be justified. These actions are
appropriate so long as the public is made whole for those services
denied from the time of the discharge until recovery is complete.
Comment: Many commenters indicated that the trustee(s) should
choose a restoration procedure on a case-by-case basis.
Response: NOAA agrees that restoration procedures must be chosen on
an incident-specific basis, except for those situations where an
approach has been developed through prespill planning pursuant to
Sec. 990.16(c).
Comment: Several commenters urged that plans be revised as the
restoration progresses and new information becomes available to provide
the greatest potential for recovery of all its natural resources.
Several commenters stated that the trustee(s) should base decisions on
previous studies and restoration efforts.
Response: The proposed rule does allow for revision of the
restoration component as new information becomes available. NOAA agrees
that access to information on previous restoration studies would be
beneficial to the trustee(s). The restoration literature survey that
NOAA has compiled will assist the trustee(s) in this regard.
Comment: One commenter noted that when total restoration is
impossible, NOAA should, at a minimum, require: (1) The use of sites
identical to the site of the discharge that are adversely affected by
other oil discharges; (2) the use of sites identical to the site of the
discharge that are assured success as a mitigation bank; or (3) the
consideration of alternatives to a mitigation bank.
Response: NOAA chooses not to ``require'' the suggestions listed by
the commenter and leaves this to the discretion of the trustee(s). The
Restoration Guidance Document does give some guidance on what might be
``identical'' sites. The trustee(s) has many possibilities on how to
approach restoration. If total restoration is not possible, the
trustee(s) can estimate lost compensable values, discount to present
value, and use that sum to acquire equivalent services.
Comment: One commenter noted that restoration science is relatively
new and this science is not yet sufficiently developed to assure the
success of human-initiated restoration of resources over natural
recovery.
Response: NOAA notes that restoration is a relatively new science
and that there are no absolute guarantees that any planned effort will
succeed. However, the trustee(s) cannot afford to wait for such
assurances before acting to help systems recover from discharges. The
trustee(s) should be mindful of the overall goal of restoration. The
restoration component should be designed to come as close as possible
to that goal.
Comment: One commenter stated that biologic resources exhibit
natural variability. Biological communities are not static. They are
drastically affected by natural forces such as weather, food supply,
and predation. The commenter argues that despite these adverse forces,
biological systems are accepted as ``healthy and vibrant'' if the
plants and animals characteristic of that community are present and
functioning normally.
Response: NOAA agrees that certain biological communities have a
high degree of natural variability. In such cases, only restoration
that allows the natural cycle to continue as before should be
considered.
Comment: One commenter noted it may not always be appropriate to
give preference to sites closest to the discharge area since this may
increase use pressures on already injured ecosystems.
Response: NOAA agrees that such factors as possible increased
pressures on the affected system should be considered by the
trustee(s).
Comment: One commenter argued that the RP(s) has a discretionary
right under the Fifth Amendment to take part in any of the trustee(s)
assessment activities. Another strongly opposed the RP(s) having sole
responsibility for monitoring the affected area.
Response: NOAA points out that participation by the RP(s) in either
the assessment or restoration is discretionary with the trustee(s). The
proposed rule does not require participation. The trustee(s) has the
right to offer the RP(s) the chance to participate, and the RP(s) has
the right to decline.
Comment: One commenter noted oil removal activities are mentioned
as feasible restoration alternatives, and that restoration activities
should be confined to those needed after response is completed.
Response: NOAA points out that a particular action, e.g., removal
of contaminated sediment, might be considered as either a response
action or restoration action. The dividing line for such
classifications is dependent upon timing and authority of the person
carrying out the actions. The response agency is acting under the NCP
to respond to incidents to protect human health and the environment.
The trustee(s) may be directed under other statutory schemes to take
similar actions for the protection of its trust resources. For example,
the response agency might remove a certain amount of contaminated
sediment to bring concentrations to a certain level set for human
health reasons. The trustee(s), however, may determine that an
additional amount of contaminated sediment may need to be removed to
attain concentrations that will not result in bioaccumulation in fish
populations.
Comment: One commenter suggested that empowering the trustees to
pursue emergency restoration outside response under the direction of
the OSC will lead to chaos.
Response: NOAA notes that the OSC does not have the authority to
implement restoration of natural resources. The trustee(s) is
ultimately responsible for that duty. If response actions are
continuing while the trustee(s) is developing the restoration
component, the two entities should work closely together.
Comment: Many commenters recommended NOAA require the trustee(s) to
identify and consider a full range of restoration alternatives,
including cleanup or remediation actions. Some commenters also
recommended limits on the range of restoration alternatives the
trustee(s) can consider for final selection. A number of commenters
suggested a preference for restoration, rehabilitation, and replacement
over acquisition of the equivalent. One commenter noted inclusion of
the four alternatives is consistent with DOI's proposed definition of
restoration. One commenter thought the descriptions of the restoration
alternatives should be contained in guidance material, rather than in
regulatory language.
Response: NOAA does not agree with the commenters who recommended a
limit on the range of alternatives the trustee(s) should consider. The
trustee(s) should consider a range of alternatives that is
``reasonable'' for the discharge of concern. The consideration of a
``reasonable number'' of alternatives should give a full range of
options that might be suitable for the specific natural resources and/
or services. NOAA notes that, although the alternatives might include
acquiring equivalent natural resources, acquisition of equivalent
resources should be considered appropriate in those cases where
restoration is technically infeasible or costs are grossly
disproportionate to the value of the resources. Guidance on the types
of alternatives and how they might be considered is given in the
Restoration Guidance Document.
Comment: Several commenters noted some discharges will not require
full action. These commenters requested an alternative requiring no
action (except, perhaps, for monitoring) beyond the cleanup actions
taken or planned. Other commenters recommend ``No Action Natural
Recovery'' as the preferred restoration alternative, e.g., prohibiting
human activity, and that all other alternatives be compared to it for
cost-effectiveness, reasonableness of costs, technical feasibility,
rate of restoration of lost services, and ecological sensitivity. A
number of commenters questioned whether human intervention will result
in more rapid recovery than would occur naturally.
Response: NOAA agrees that ``Natural Recovery'' should be an
alternative considered in every case. This proposed rule does direct
the trustee(s) to consider such an alternative in each restoration
component drafted.
Comment: A few commenters stated a restoration alternative should
not be selected unless the trustee(s) had included in the
administrative record evidence the trustee(s) used to determine that
that alternative is both possible and preferable to the other
alternatives considered.
Response: NOAA is sensitive to the concern regarding the public's
opportunity to have access to information available to the trustee(s).
Therefore, documentation of the trustee's(s') decisionmaking process is
one of the reasons behind NOAA's decision to provide for the
administrative record process established in Sec. 990.15 of the
proposed rule. A discussion of the types of documentation available to
the public in this record can be found in the earlier section of this
preamble that discusses subpart A of this proposed rule.
Comment: Several commenters believe acquisition should not be a
last resort, while others suggested that acquisition should never be
considered as an alternative. Exceptions to acquisition as a last
alternative were indicated when natural resources or services are
subject to intense or continuous pressures, or unique habitats or
threatened/endangered species are involved not under the protection of
another regulatory program. The rationale for eliminating acquisition
altogether was based on the notion that this alternative would diminish
the underlying benefit of resource sustainability as a result of
restoration, accelerating depreciation of natural resource assets.
Response: NOAA does not agree that ``acquisition of the
equivalent'' should be eliminated from consideration by the trustee(s),
and retains this alternative in the proposed rule. NOAA points out that
the legislative history of OPA states that acquisition of equivalent
natural resources should be chosen if restoration is infeasible or its
costs are grossly disproportionate to the value of the resources.
Comment: One commenter noted that NOAA provides different standards
for replacement and acquisition of natural resources. The commenter
recommends NOAA define ``substantially similar'' to meet the mandate in
OPA requiring equivalence between the affected natural resource and
``new'' natural resource. The commenter also stated that NOAA should
recognize the fact that, although acquisition may be necessary, it only
protects the status quo and will not replace the lost functions of the
affected area.
Response: NOAA did not intend to suggest different standards for
replacement and acquisition of equivalent natural resources. The term
``substantially similar'' is defined to ensure that the services
provided after the event are as close as possible to baseline
conditions. In response to the suggestion that acquisition of
equivalent natural resources simply preserves the status quo, NOAA
notes that the evaluation of restoration alternatives should seek to
ensure return to baseline or comparable conditions of natural resources
and/or services. Therefore, acquisition of equivalent resources might
also include some improvement of the acquired resources to make up for
what the public lost.
Comment: A number of commenters suggested a screening process for
selecting a restoration alternative to ensure the selected alternative
is technically feasible, environmentally-effective, and has costs that
are not grossly disproportionate to the anticipated benefits. In the
screening process, the trustee(s) should identify all restoration
alternatives that could be pursued. The trustee(s) should then
eliminate those that are not technically feasible, inconsistent with
applicable federal and state laws and policies, not cost-effective, or
have costs that are grossly disproportionate to the anticipated
benefits of restoration, but not using a numerical criterion. The
``grossly disproportionate'' criterion should apply to incremental, not
marginal, costs and benefits as well as total costs and benefits.
Finally, from the remaining alternatives, the trustee(s) should select
the one most suitable for restoring the natural resource injuries. One
commenter cited one court, in Commonwealth of Puerto Rico v. Zoe
Colocotroni, 628 F.2d 652 (1st Cir. 1980), that suggested similar
factors be considered in the planning of restoration.
Response: NOAA notes that the selection factors indicated by the
commenters are incorporated in some form in the proposed rule and
Restoration Guidance Document.
Comment: One commenter opposed the promulgation of any rule that
allows the use of mitigation banking. The commenter noted mitigation
banks have not been successful in restoring other affected natural
resources such as wetlands, and urged NOAA consider other methods of
restoration where total restoration of the affected area is not
possible. The commenter stated no preference should be given to sites
that have similar resources in another watershed since it has no
restorative effect on the affected area, and would potentially result
in the total sacrifice of the discharge area.
Response: NOAA notes that the concept of ``mitigation banking'' has
met with criticism in recent years. However, NOAA does not wish to
preclude the use of any tool that may be useful to the trustee(s).
Therefore, although not required, mitigation banking would still be an
option to consider where the trustee(s) feels it may be appropriate.
The location of the activity, i.e., one watershed or another, would be
a factor that the trustee(s) should consider.
Comment: Some commenters noted that pilot projects prior to full
restoration are appropriate in some cases, but should not be required.
Several others agreed pilot projects should be used, but only prior to
restoration. Another noted that pilot studies are unnecessary under any
circumstances.
Response: NOAA points out that the proposed rule allows feasibility
or pilot studies to determine the effectiveness of restoration actions.
However, the such efforts should be carefully defined and their need
documented.
Comment: Many commenters stated that both early and long-term
monitoring is essential to evaluate the recovery of the affected
resource. One commenter recommended that the affected area be monitored
for a minimum of five years.
Response: NOAA agrees that the restoration component should
consider monitoring, but leaves the details to the trustee(s) regarding
the nature and extent of such activities. NOAA does not agree that
there should be an absolute time requirement for monitoring since these
plans are site-specific.
Comment: A number of commenters agree that mid-course corrections
be used as a gauge for measuring the effectiveness of restoration.
Another agreed that such corrections should be required until the
system has stabilized. Several commenters supported the inclusion of
mid-course corrections, so long as the RP(s) is not held accountable
for additional costs, unless the RP(s) participated in the original
restoration plan, or unless there was a stipulation for mid-course
corrections previously included in the restoration component of the
damage settlement.
Response: NOAA notes that the proposed rule does allow for mid-
course corrections in restoration. However, it would not be reasonable
to expect a damage award to have reopeners in perpetuity for taking new
approaches to restoration of a system following one discharge.
Therefore, the trustee(s) needs to design the restoration component
carefully to spell out the conditions under which mid-course
corrections would be called for and try to anticipate an endpoint to
the restoration process.
Comment: One commenter pointed out that OPA does not mention
``grossly disproportionate'' costs. The commenter noted that the phrase
is only discussed in OPA's legislative history in terms of a factor to
consider in choosing between restoration and acquisition of the
equivalent. As such, the phrase cannot be used to relieve the RP(s)
from the obligation to either restore or acquire equivalent resources,
as seems possible under the Ohio decision.
Response: NOAA agrees that discussion of the phrase ``grossly
disproportionate'' in OPA's legislative history is different from the
discussion found in the Ohio decision. Under OPA, the trustee(s) is to
consider whether the costs of restoration, rehabilitation, or
replacement would be grossly disproportionate to the value of the
injured natural resource only in deciding to acquire equivalent natural
resources.
Comment: Several commenters indicated that the selection of a
restoration alternative not be ``grossly disproportionate'' to the
benefits derived from the action.
Response: NOAA agrees with this comment to the extent that it uses
the term ``grossly disproportionate'' as discussed in this proposed
rule. As previously noted, NOAA believes that the OPA proposed rule
should not strictly define a numeric ratio delimiting the term
``grossly disproportionate.'' Instead, NOAA has established a number of
factors that the trustee(s) must consider. NOAA concludes that this is
the most appropriate approach for meeting OPA's strict objective of
complete ``restoration, rehabilitation, replacement, and/or acquisition
of the equivalent resources, * * *,'' following the discharge of oil.
Comment: Several commenters discussed the earliest treatment by a
court of the issue of grossly disproportionate restoration costs,
Commonwealth of Puerto Rico v. Zoe Colocotroni, 628 F.2d 652 (1st Cir.
1980). The court in Zoe Colocotroni stated that the appropriate measure
of damages would be the cost reasonably incurred to restore or
rehabilitate the injured resources to as close to baseline condition as
is feasible without grossly disproportionate costs. The court suggested
that where such restoration is either physically impossible or
disproportionately expensive, the measure of damages might be the
acquisition of comparable lands. The commenters suggested that NOAA
should use the standards given by the Zoe Colocotroni court.
Response: NOAA notes that the standards listed in the Zoe
Colocotroni decision are, in fact, included in the factors to be
considered in evaluating restoration alternatives under OPA.
Comment: Several commenters proposed that the OPA rule provide for
restoration cost estimates in tabular format based historical data. One
other commenter noted the dearth of restoration cost information from
which to draw estimates.
Response: NOAA feels there is sufficient information to proceed
with the development of damage cost estimates in tabular format, i.e.,
compensation formulas. The data on costs will be based upon a ``dollar-
per-gallon'' formula, taking into account average restoration costs,
plus average lost direct use pending restoration. NOAA recognizes,
however, that for certain incidents or types of natural resources and/
or services, site-specific restorations must be planned for which
detailed cost estimates could then be established.
Comment: One commenter stated that it is premature to limit the
quality or quantity of restoration to the ability of the RP(s) to pay.
The RP(s) must, in principle, be held to fully offsetting the damages
that was caused by the discharge. Another commenter noted that because
of the limited liability of the RP(s) in section 1004 of OPA, all costs
may not be recovered from the RP(s). Therefore, restoration priorities
must be made and funded by the proven claimants.
Response: NOAA does believe that the RP(s) should be liable for all
reasonable damages. However, NOAA also notes that the trustee(s) must
develop realistic plans if any benefit is to be expected rather than
spend time and effort on unrealistic plans. Also, the trustee(s) may be
able to fund necessary restoration actions through an ``uncompensated
claim'' submission, pursuant to section 1012(a)(4) of OPA.
Comment: One commenter pointed out that intervening outside
influences and their effects must not be charged against the RP(s).
Response: NOAA notes that ordinarily independent, intervening
actions or conditions may not be within the liability of the RP(s).
Comment: One commenter noted that if there is no impairment of the
services of a natural resource, then society suffers no damage.
Following, if society suffers damage due to impairment of a resource's
services, that damage is fully remedied when the resource's services
are restored, since society's welfare is then returned to the state in
which it would have been in the absence of the injury.
Response: Damages include the value of lost services pending
recovery of the natural resources and/or services. Return to baseline
levels of services does end the current losses of values but does not
address the past losses to the public pending that return. Therefore,
those past losses are recoverable as a part of the damage figure.
Comment: One commenter agreed that NOAA's ANPRM correctly
recognizes that the measure of natural resource damages is based on the
services provided by the affected natural resources. Another commenter,
however, stated that restoring services is not the same as restoring
natural resources and, therefore, should not be the preferred measure
of damages.
Response: NOAA agrees that the value of lost services is one
component of the damage figure. However, restoration of the injured
natural resource is always preferred where practicable.
Comment: Several commenters objected to the suggestion that the
trustees ``improve'' access to the injured site or another site as a
method of restoration. These commenters argued that use of sums
recovered for such purposes would be inconsistent with OPA.
Response: NOAA did not intend to suggest that increased use of an
injured natural resource is a viable restoration alternative. NOAA
suggests that one way of providing services for interim lost use
pending recovery might be to provide public use of a substitute site.
The substitute site would have to be capable of sustaining such use
without impairment. This suggestion of alternative services may also be
a way to use those sums recovered representing diminution of use in a
way to make the public whole for its loss.
Compensable Values Determination
I. Introduction
Section 1006(d) of OPA authorizes the trustee(s) to recover: The
cost of restoring, rehabilitating, replacing or acquiring the
equivalent of the injured or lost natural resources and/or services;
the diminution in value of the injured or lost natural resources
pending restoration; plus the reasonable cost of assessing those
damages. Guidance on estimating restoration costs is discussed
previously in this preamble. This discussion provides guidance to the
trustee(s) for estimating the total diminution in value of resources
and/or services affected by a discharge, hereinafter referred to as
compensable values.
For the purposes of this proposed rule, compensable values include
all reliably calculated values that comprise the total diminution in
value of lost or diminished services of trust resources as a result of
a discharge, from the onset of the event until recovery to baseline
conditions is deemed complete by the trustee(s), i.e., interim lost
values. If the resources and/or services will not fully recover with
the implementation of the Restoration Plan, the calculation of
compensable values will include the value of a perpetual stream of lost
services. Failure to include all relevant categories of damages in a
claim would understate the true loss to the American public
attributable to the discharge of oil. In accordance with the
Congressional Conference Report (H. Conf. Rep. No. 653, 101st Cong.,
2nd Sess. at 108), ``diminution of value'' refers to the standard for
measuring resource damages cited in the D.C. Circuit Court decision on
Ohio v. DOI. The Ohio opinion defines ``use values'' broadly, to
encompass both direct use and passive use values that can be reliably
calculated, i.e., calculated in a manner that is trustworthy or worthy
of confidence. (See 57 FR at 23067.)
Direct use values are defined as the value individuals derive from
direct use of a resource. Direct uses of resources include both
consumptive uses, such as fishing and hunting, in which resources are
harvested, and nonconsumptive uses, in which the activity does not
reduce the stock of resources available for others at another time,
such as birdwatching and swimming.
Passive use values are defined as the values individuals place on
resources independent of direct use of a resource by the individual.
The term ``nonuse values'' has also been used to refer to the same
concept, but NOAA prefers the term ``passive use values.'' Passive use
values include, but are not limited to: the value of knowing the
resource is available for use by family, friends, or the general
public; the value derived from protecting the resource for its own
sake; and the value of knowing that future generations will be able to
use the resource. Passive use values pertain to the provision of,
improvement to, or prevention of injury to natural resources.
The total value of a resource to an individual consumer encompasses
both direct use and passive use values. When an injury occurs to a
resource, the measure of damages to an individual is the change in the
individual's utility or level of well-being, as measured in monetary
terms (i.e., monetized changes in utility). Economic analysis provides
two exact monetary measures of any change in individual's well-being:
Willingness to pay (WTP) and willingness to accept (WTA). WTP is the
maximum amount of money that an individual would be willing to give up
to ensure access to, provision of, improvements to, or prevention of
injury to a natural resource. WTA is the amount of money that would be
needed to compensate an individual for the loss of access to or for the
injury of a natural resource. To calculate the monetized change in an
individual's utility resulting from a resource injury, net willingness
to pay or willingness to accept is calculated. Net willingness to pay
or willingness to accept is total WTP or WTA minus the costs an
individual incurs to use the resource services, including travel and
time costs.
An approximation for the exact measures of the change in utility or
well-being is the Marshallian ``consumer surplus,'' the value of which
generally falls between WTP and WTA. Marshallian consumer surplus is
the difference between the maximum sum of money an individual would be
willing to pay for a good or service, as calculated from a Marshallian
demand function, and the amount the individual is actually required to
pay. The Marshallian consumer surplus is calculated directly from
observed behavior in market or market-like transactions. This measure
of value of a good or service incorporates the income effects of
changes in its price or quality; for example, a reduction in price or
an increase in quality would have the effect of increasing real buying
power. As a result, Marshallian consumer surplus does not measure value
from a fixed baseline level of utility. In contrast, the exact measures
of WTP and WTA are so labeled because they calculate the monetized
change in utility or well-being from a fixed baseline level of utility.
In any given context, the more appropriate choice between the exact
value measures depends upon the allocation of property rights. Because
the government is holding natural resources in trust for the public,
the WTA criterion is conceptually the more appropriate measure of
damages for natural resource damage claims. However, in some
circumstances it may be infeasible or impractical to provide reliable
measures of WTA. In those circumstances, the more conservative measures
of WTP or the Marshallian consumer surplus are appropriate for
measuring damages.
In addition to losses in value to individuals, compensable values
also include losses to trustee agencies or Indian tribes that protect
and manage the resources for the individual members of the public. The
losses include the reduction in fees collected for the use of natural
resources in the public domain by government agencies or Indian tribes
that are designated as trustees of the natural resources. Similarly,
the reduction in economic rent accruing to a private party because the
government or Indian tribe does not charge a fee equal to the value of
the resource in that use also represents a loss to the public. In this
context, economic rent refers to the difference between the fees that
users would be willing to pay for the use of a public natural resource,
and the fees actually paid. Finally, the loss to the public includes
the reduction in net revenues to public enterprises controlled by the
trustee(s) as a result of the injury to natural resources.
In summary, the compensable values that may be claimed by a trustee
for the losses to the public include, but are not limited to: (i) The
value of losses to all public uses of natural resources (including
passive use) as measured by changes in (a) monetized changes in
utility, or consumer surplus, (b) fees or other payments collectable by
the government or an Indian 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 Indian tribe does not charge a fee or price
for the use of the resource equal to the value of the resource
services, provided such economic rent is not recovered under a private
cause of action; and (ii) in instances where the natural resource
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.
Although section 1002 of OPA allows other types of recoveries for
damages resulting from a discharge of oil, this proposed rule covers
only damages recoverable by natural resource trustees for injuries to
natural resources and/or services resulting from the discharge.
Therefore, damages assessed in accordance with this proposed rule do
not include: (1) Taxes forgone, because these are transfer payments
from individuals to governments; (2) wages and other income lost by
private individuals, except for that portion of income that represents
uncollected economic rent, because these values do not accrue to the
trustee(s) and may be the subject of lawsuits brought by the
individuals suffering the loss; or (3) any speculative losses.
II. Economic Valuation Process
Natural resources can be viewed as long-lived assets that provide
flows of services through time; for example, fisheries and forests
provide continuing opportunities for commercial harvests of fish and
timber, as well as for fishing, hiking, and other recreational
activities. A fundamental principle of asset valuation is that the
current value of an asset is equal to the present discounted value of
the stream of future services from the asset. When a discharge injures
trust resources and/or services, the diminution in value will equal the
sum of the changes in the present discounted values of all affected
services.
The basic types of services associated with natural resources
include: (1) Recreational; (2) commercial; (3) cultural/historical; (4)
ecological; (5) subsistence; and (6) passive use. A discharge may
affect any or all of these services.
Injuries resulting from a discharge may reduce either the quality
or the quantity of services and resources available to provide
services. For example, if a municipal beach is oiled by a discharge,
recreational beach use will be identified as a category of services to
be analyzed. If the beach is closed for some period, the quantity of
recreational beach services available to the public is reduced. In
addition, after the beach is reopened, the continuing presence of
tarballs on the sand and in the water may reduce the quality of
services available at the beach. The reduction in service quality may
result in a lower value to the user from a visit, and consequently
individuals may reduce their visitation at the beach, with some
stopping visitation entirely during the affected period. In summary,
damages during the period of injury after the reopening of the beach
may include lost values due to reduction in visitation and decreased
value per trip for trips that do occur.
Where resources are used as inputs into a production process, a
reduction in the quantity or quality of the resource may effectively
increase the costs of the input. For example, a closure or a fish kill
in a commercial fishery may increase the transportation costs of
achieving a given commercial catch level. As a result, the injury may
reduce the economic rent accruing to the producer from use of the
public trust resource, the fishery. If the producer is able to pass
part of the effective cost increase onto the consumer, the injury will
reduce consumer surplus as well.
The first step in measuring compensable interim lost values is to
identify the services provided by the natural resources before the
injury. For example, wetlands provide a wide range of services
including, but not limited to, flood control, habitat for plants and
animals (particularly during early life stages), and recreational
opportunities. Any given discharge may not affect all of these
services. For example, a discharge that results in oiling of wetland
vegetation above ground may leave the roots intact. As a result, the
flood control services may be relatively unaffected, while the quality
of habitat for plants and animals may be significantly reduced.
Once a list of services potentially affected by the discharge has
been developed, the trustee(s) will identify which services to consider
in the damage assessment process and the methods for quantifying
economic damages due to those lost or diminished services. As discussed
below, a variety of valuation methodologies are available to the
trustee(s). However, for a given service affected by the discharge,
there may be only one or two methods that are suitable for valuing the
specific type of loss. The availability of data can also affect the
choice of methodology.
The next step involves estimating the change in the quantity and
quality of services attributable to the discharge. This effort requires
information from the Injury Quantification portion of the damage
assessment that identifies the change in the quantity or quality of
resources available to provide services. Users' behavioral responses to
the quantity or quality changes can be estimated, where relevant. For
example, when a fish kill affects a recreational fishery, the lost
recreational services result in the reduction of angler days at the
site. To calculate the change in participation, the change in fish
stock needs to be translated into the resulting change in anglers'
hourly catch rate. Then, the anglers' behavioral response to the change
in quality can be modeled to determine the reduction in recreational
fishing at the site attributable to the discharge.
Once the magnitude of the lost services has been estimated,
economic values are assigned to these services. For example, with
recreational demand models, the change in consumer surplus attributable
to the discharge is calculated directly from the model along with the
change in number of trips. Alternatively, where welfare losses accrue
due to increased input costs, the full welfare loss can be captured by
measuring the reduction in factor income (or surplus).
The diminution of value pending full recovery of the resource is
calculated as the present discounted value of services in the absence
of the injury minus the present discounted value of services with the
injury. To determine the present discounted value with the injury, the
choice of restoration method must be explicit: If no restoration
actions are planned, the with-injury calculation will be based on a
natural recovery scenario. If restoration actions are planned, the
with-injury calculation will need to take into account the effect of
restoration actions on resource recovery paths.
When the recovery period for a resource extends over multiple time
periods, it is important to adjust the damage calculations for each
period for the increases in the quantity and/or quality of the resource
prior to full recovery: In most cases the services will be increasing
toward baseline as the quantity and/or quality of the resource
recovers. The recovery path may differ for each service, so each may
need to be considered separately. For example, in the wetland context
cited above, individuals may choose to return to the wetland to view
wildlife in a matter of weeks, whereas recovery of the habitat to
support a fish hatchery may take months or years.
For some categories of economic damage, it will be possible to
conduct site-specific analyses. For example, the economic damages
associated with the loss of access to a marine transportation corridor
due to closure of a waterway can be estimated using existing site-
specific data in most instances. In other cases the trustee(s) may
employ benefits transfer procedures to apply valuation estimates or
valuation functions from existing valuation studies from other contexts
to estimate losses in the present incident.
III. Measurement Techniques
A. Introduction
Several methodologies exist to measure direct use and passive use
values. This proposed rule provides maximum flexibility to the
trustee(s) for selecting any methodology that can provide reliable and
valid estimates of resource values and that is appropriate for valuing
the injuries associated with a particular discharge. The trustee(s)
will have broad discretion in selecting among existing and potential
new methodological approaches that may be employed in damage
assessment. The flexibility to exercise professional judgment in
selecting and applying specific analytical techniques is necessary
because of the ``site-specific'' nature of discharges of oil. Further,
the trustee(s) may use different methodologies to produce separate
damage estimates for different resource services, so long as there is
no double recovery of losses. Either market or nonmarket resource
methodologies may be employed, as relevant to the specific valuation
issues in a given context.
To measure consumer values economists often rely upon directly
observable data on prices and quantities from transactions in private
markets. By definition, nonmarket goods and services are not traded in
traditional markets, generally because such exchange arrangements are
not practical or efficient. For example, national defense, the
interstate highway system, and national parks are nonmarket commodities
provided by the public sector and generally are not traded in private
markets. For goods that are not provided through private markets,
alternative means of determining values have been developed.
The proposed rule identifies reliable valuation techniques for
assessing the economic value of natural resources and/or services
including: The travel cost method; the factor income approach; the
hedonic price model; market models of demand and supply; and the
contingent valuation method. The trustee(s) is not limited to these
methods, and may use any method suitable for calculating compensable
value. Where the circumstances are such that a site-specific
application of one of these valuation methods is not appropriate and/or
does not meet the reasonable lost criterion, the trustee(s) may
estimate compensable values using benefits transfer or may estimate
damages for interim lost services using the habitat or species
replacement cost method. The choice of approach(es) in a particular
context will depend upon the types of injuries associated with a
discharge.
B. Measurement Techniques
1. Site-specific valuation methods--a.Travel cost method. The
travel cost method is principally employed to model demand for
recreational experiences. This measurement technique evolved from the
insight that the travel costs an individual incurs to visit a site are
like a price for the site visit. In essence, the travel cost method
assesses an individual's willingness to travel further (and thereby
incurring higher travel costs) in order to recreate at more highly
valued sites. A site demand function for a sample of households can be
estimated with information on total trips to the site and travel cost
to the site. With trip participation data for before and after a
discharge, it is generally possible to estimate the shift in demand
induced by the discharge (holding all other factors constant) and
calculate either the resulting change in the exact welfare measures of
willingness-to-accept or the Marshallian consumer surplus
approximation. However, if recovery of the resource will occur in
increments over an extended time period, it will not be feasible to
collect site-specific participation data for the full period of the
recovery within the timeframe of the assessment. Adjustments to the
immediate decline in site-specific participation will need to be made
to capture the incremental recovery in participation throughout the
period of resource recovery.
Recent advances in the travel cost method may allow the trustee(s)
to value the variation in quality at a site due to a discharge even
when before and after participation data are not available. Instead of
focusing on the number of recreation trips to a given site (or to all
sites) in a season, the random utility method focuses attention on the
recreationist's choice among alternative recreational sites. This
version of the travel cost model is particularly appropriate where many
substitutes are available to the individual and when the discharge
affected quality at multiple sites.
b. Factor income approach. This approach relies upon the production
function model, which relates the contribution of inputs to the
production of an output. (Inputs are also referred to as factors of
production.) Changes in the availability or price of inputs will affect
the availability and price of the output and hence the level of income
accruing to the producer. Where unpriced natural resources are an input
in the production process, producer income will include both economic
profit (the amount of profit a producer requires to keep capital in
this use in the long run) and economic rent (the income accruing to a
producer as a result of access to an unpriced resource). For example,
fish stocks allocated to commercial fisheries are inputs to the
production of commercially sold fish; access to navigable waterways is
an input into the transport of raw materials and processed goods.
Though the government generally does not charge fees (or charges only a
nominal fee) for the use of fishery or navigational channel resources
or their services, the producer does incur labor and equipment costs to
acquire the services of the natural resource.
A discharge may decrease the quality and/or quantity of a resource
and thereby effectively increase the cost of acquiring the natural
resource input. For example, closure of a fishery may force commercial
fishermen to travel farther to obtain catch, or closure of a commercial
waterway may force vessels to travel longer distances or may delay
docking at port; in both cases, producer costs have increased. As a
result, the injury may reduce the economic rent accruing to the
producer from use of the public trust resource. The change in economic
rent attributable to a discharge can be evaluated by calculating the
change in surplus either in the product market or in the input markets.
Where the output price is not affected, the change in economic rent is
simply the sum of the change in factor costs (or factor income) for
each affected input.
c. Hedonic price model. The hedonic price model relates the price
of a marketed commodity to its various attributes. In the natural
resource damage assessment context, it may be used to determine the
change in value of some nonmarket services from public trust resources
(for example, environmental amenities such as water or air quality)
where they function as attributes of private market goods, such as
property. For example, the value of beach front property may be
directly related to the quality and accessibility of the adjacent
coastline. Reduction in the quality or accessibility, as may occur due
to a discharge, will be captured in the value of the property. All else
equal, the decrease in property values as a result of a discharge
measures the change in use value of the injured coastline resources
accruing to a subset of the potentially affected public, i.e., the
local property owners. This measure is only a partial accounting of the
reduction in value of coastline resources because it does not capture
the loss in value of the resources accruing to members of the public
who own no property in the area.
d. Market models of demand and supply. For those goods and services
regularly traded in markets, economists typically rely upon market
transactions to reveal the values that individuals place on the goods
and services and the costs of producing them. When the quality of the
resource directly affects the value individual consumers place on a
good or service, the correct measure of damage is the change in
consumer surplus, or individuals' willingness-to-accept compensation
for the injuries associated with the discharge. The standard method for
valuing injuries that affect consumers' value of a marketed resource is
to estimate models of market supply and demand for the resource and/or
service. Assuming the injury does not affect the production side of the
market, the damages are calculated as the difference between the total
consumer surplus for the marketed resource with and without the injury,
holding all else constant. The calculation is more complicated when the
production side is also affected. With some demand models, it is
possible to calculate exact willingness-to-accept measures from the
demand analysis; in other cases, the more readily available measure of
Marshallian consumer surplus is used as a proxy.
When the supply of the resource is fixed (or quasi-fixed), then the
observed or predicted change in market price may be used as a proxy for
the change in resource values. An example of a quasi-fixed resource
would be land--the supply of land is fixed in the short-run, but in the
medium-run, improvements to the land may change the flow of services
(agricultural, floral/faunal habitat, housing) available from
individual parcels of land. Market-based methods only capture the
reduced value of services accruing to owners of the resource, and will
not capture the lost value of services provided to the members of the
public with no ownership rights in the resource.
When the resource is regularly traded in the market, the change in
market price may be readily observable. If the injured resource is not
regularly traded in a market, but similar or like resources are traded,
the trustee(s) may use the appraisal technique. The appraisal technique
also will only capture the reduced value of services accruing to owners
of the resource, and will not capture the lost value of services
provided to the members of the public with no ownership rights in the
resource. To the extent possible, all appraisals should conform to the
``Uniform Appraisal Standards for Federal Land Acquisitions'' (Uniform
Appraisal Standards), Interagency Land Acquisition Conference,
Washington, DC, 1973. In those instances when state statutes may be in
variance with these standards, a state trustee(s) should follow the
applicable state guidance on performing appraisals.
e. Contingent Valuation Method. Contingent valuation (CV) is a
survey-based approach to the valuation of nonmarket goods and services,
that relies on a questionnaire for the direct elicitation of
information about the value of the good or service in question. The
value obtained for the good or service is said to be contingent upon
the nature of the constructed (hypothetical or simulated) market and
the good or service described in the survey scenario. This aspect of CV
gives the approach great flexibility, allowing valuation of a wider
variety of nonmarket goods and services than is possible with any of
the other aforementioned techniques. Indeed, it is the only method
currently available for the express purpose of estimating passive use
values. In the area of natural resources, CV studies generally derive
values through elicitation of respondents' willingness to pay (WTP) to
prevent injuries to natural resources or to restore injured natural
resources.
The first published CV study, valuing outdoor recreation, appeared
in 1963. There are now over 1,400 documented papers, reports and books
on CV. In recent years, it has become one of the most widely used
methods of nonmarket valuation.
Four basic elements common to CV questionnaires are: (1) An
explanation of the structure and rules of the market in which the good
or service being valued is either bought or sold; (2) a description of
the good/service and how it is to be provided; (3) the value
elicitation question; and (4) validation questions, to verify
comprehension and acceptance of the scenario and to elicit
socioeconomic and attitudinal characteristics to interpret the
variation in responses to the valuation question across respondents.
There are no universal rules on how each of these elements of a CV
questionnaire should be designed, since the appropriate formulation of
each depends on the good or service being valued and its context and,
consequently, will vary across applications.
CV surveys generally measure total value of a good or service,
which includes both direct use value and passive use value. Because
passive uses of resources leave no behavioral record, they are
difficult to validate externally. A number of criticisms of CV pertain
specifically to its use in valuing the passive use component of total
value and the difficulty of external validation of that component of
total value. Among the most commonly cited criticisms are: The stated
intentions of willingness to pay in CV surveys may exceed ``true''
willingness to pay; CV may produce results that appear inconsistent
with the tenets of rational choice; respondents to CV surveys on
passive use may be unfamiliar with the good/service being valued and
therefore may not have an adequate basis for articulating their true
value; CV respondents may be expressing a value for the satisfaction
(``warm glow'') of giving rather than the value of the good/service in
question; and respondents may fail to take CV questions seriously
because the financial implications of their responses are not binding.
Most proponents of CV acknowledge that poorly designed and administered
CV studies can produce results that reflect the potential problems
identified above. However, proponents also assert that these problems
are not inherent to the method and that well designed and well executed
CV studies can eliminate them or render them inconsequential. Further,
survey design, development and administration standards will promote
quality control for CV surveys. NOAA proposes standards on survey
design, development and administration, and the nature of results
below.
There is considerable interest over the inclusion of passive use
values as part of a natural resource damage claim and the use of CV to
measure such values. NOAA received many, often conflicting, comments on
this issue. To provide a thorough analysis, NOAA convened a Contingent
Valuation Panel (Panel) of economic and survey experts to evaluate the
reliability of CV to measure passive use values. By establishing this
Panel, NOAA attempted to provide an atmosphere in which an unbiased
academic analysis of CV could be conducted. The Panel received hundreds
of pages of comments and conducted a public meeting to hear all sides
of the issue. Upon completion of its study, the Panel submitted its
report to NOAA. That report constitutes a public comment and as such is
part of the administrative record of this rulemaking. A copy of that
report can be found at 58 FR 4601 (Jan. 15, 1993). NOAA considered that
report along with the comments received from economists, industry
representatives and other interested parties in the development of this
proposed rule.
Based upon consideration of all comments received, NOAA believes
that the trustee(s) should have the discretion to include passive use
values as a component within the natural resource damage assessment
determination of compensable values. This position is consistent with
OPA legislative history that specifically refers to diminution in value
as a part of damages and cites the Ohio decision definition of value,
which includes both direct use and passive use. Further, NOAA believes
that reliable estimates of lost passive use value due to discharges of
oil can be estimated using CV so long as the CV study follows the
standards provided in the proposed regulations. NOAA worked closely
with the Department of the Interior during the development of the
proposed standards for CV in order to ensure consistency between the
two sets of natural resource damage assessment regulations. NOAA
understands that the Department of the Interior will soon propose
identical standards for inclusion in its damage assessment regulations.
NOAA believes that the proposed standards are necessary when CV
surveys are used for natural resource damage assessment, because such
studies will be given a rebuttable presumption in litigation over the
specific amount of money a particular party must pay as compensation
for liability. However, this same level of precision for CV surveys is
not necessarily required for other applications of CV.
In proposing its standards for the use of CV in the damage
assessment context, NOAA has relied heavily on the recommendations of
the Panel. NOAA bases this reliance on the fact that the Panel reviewed
a number of studies and considered the viewpoints of many individuals
in reaching its conclusions.
The Panel's recommendations fall into two categories--those that
should be met to assure reliability and those that must be met.
Regardless of the category in which the recommendations are included,
almost all the recommendations deal with survey design, development and
administration. Because NOAA believes that a properly designed and
administered survey is essential to ensure reliable responses, NOAA has
proposed a number of standards in these areas.
There is also considerable interest in ``performance standards.''
Performance standards would be those tests that can be used to
determine whether reliable measures of passive use value were obtained.
The Panel briefly addresses this issue in its discussion of whether CV
results violate assumed properties of rational choice. The Panel
returns to this area only in the form of one of the five conditions CV
surveys must meet--responsiveness to the scope of the environmental
insult. NOAA proposes a performance standard for this condition, which
is discussed in more detail below.
The standards for passive use value estimation in the proposed rule
cover three distinct aspects of a CV study: (1) Survey instrument
design and development, (2) survey administration, and (3) the nature
of the results. The regulatory standards proposed by NOAA are intended
to provide flexibility to the trustee(s) so that it can take advantage
of new developments that may occur in CV methodology. Further, the
standards are subject to amendment as new research is conducted and
additional knowledge is achieved.
Survey Instrument Design and Development. The reliability of a CV
estimate of passive use value begins with the design and development of
the survey instrument. The proposed rule contains a number of standards
for the design and development of the survey instrument, including
standards regarding the selection of a choice mechanism. Past CV
studies have used different methods to elicit values. These methods
include open-ended WTP questions; bidding cards; and voting formats
typically termed ``referenda.'' In the damage assessment context, the
survey will be offering a public good in one of two forms--prevention
of injury or restoration of the injured resource. NOAA proposes that
the trustee(s) use a choice mechanism and payment vehicle that are both
credible and incentive compatible, i.e., do not impose strategic bias.
The trustee(s) is to use his discretion in selecting the choice
mechanism, and is to document the rationale for the choice and explain
how it is incentive compatible.
However, NOAA would encourage the trustee(s) to consider the
Panel's recommendation to pose the valuation question as a vote on a
referendum. NOAA believes that there are many advantages for using a
voting format for a CV survey for natural resource damage assessment
purposes. NOAA believes that the method of elicitation should be one
with which people are familiar and one which provides a realistic
context in which respondents can choose to increase levels of public
goods. Local jurisdictions and state governments often ask voters to
increase taxes on themselves so that public goods may be increased
(i.e., school bond issues; special assessments for public
infrastructure). Thus, the voting mechanism is both a familiar and
realistic context for individuals to make choices regarding public
goods. Second, in our society, most goods are offered using posted
prices. Asking an individual to reveal his or her maximum WTP for a
good is both unfamiliar and unrealistic. Third, it is important that
respondents should believe that they will receive the program offered
in the CV survey. To CV respondents, the cost of the program naturally
determines the price they must pay. If no set price is offered, the
respondents may perceive uncertainty regarding the program's costs and
therefore uncertainty regarding the provision of the program. Finally,
the voting format is incentive compatible. If respondents desire the
program at the stated price, they must reveal their preference and vote
for the program. Voting against or refusing to vote will only lower the
probability of obtaining the program.
Survey Administration. The most carefully designed CV survey can
produce unreliable results if the survey administration is faulty.
Therefore, NOAA proposes standards for survey administration. For the
most part, the standards specified for survey administration are
similar to those one would expect any high quality survey to meet.
One of the aspects of survey administration dealt with in the
proposed rule is determination of an appropriate response rate. NOAA
proposes that the trustee(s) should obtain as high a response rate as
possible consistent with the requirements of reasonable cost in order
to ensure reliable inferences to the general population. Low response
rates pose a risk of compromising the statistical validity of the
survey when nonrespondents have systematically different passive use
values than respondents. Another risk associated with low response
variance may be significantly affected such that the indicated
confidence of survey results is questioned. Since the likelihood of
this risk cannot be determined unless nonrespondents have been
surveyed, the trustee(s) should minimize nonresponse in the final
survey to the extent practicable. For example, the trustee(s) may
design the survey instrument so that individuals must decide whether to
respond before the exact nature of the environmental insult is
revealed.
Balancing the desirability of a high response rate against cost
considerations, NOAA has proposed that response rates should not fall
below 70%. NOAA is interested in further comments on whether there
should be a specified response rate and, if so, whether 70% is a
reasonable floor.
Another aspect of survey administration addressed in the proposed
rule is selection of the mode of administration. The three generally
used CV survey administration modes are in-person, mail and telephone.
Recently, mixed mode surveys have combined mailed information with
telephone interviews. There are advantages and disadvantages of each
method, and often the selection of the appropriate method is dependent
on a number of factors such as cost, turn-around time, desired response
rate, type of information to be conveyed, use of visual aids, required
population coverage and the ultimate use of the survey results. For
example, telephone surveys can approximate simple random sampling of
households through random digit dialing; can produce fast results; are
relatively easy to administer; and are less expensive than in-person
interviews. On the other hand, visual aids cannot be used; interviews
need to be relatively short; interviewer bias may be involved; and
individuals without telephones are necessarily omitted from the sample.
Self-administered mail surveys are the least costly of the three
methods. However, probability sampling is exceeding difficult;
respondents can review the survey before deciding to participate
(imparting self-selection bias); there can be no random selection
within the household and no control of question sequencing; and a
higher number of incomplete responses are likely to result because
there is no interviewer to motivate the respondent. Finally, in-person
interviews permit random selection of the respondent within the
household; maintain control of question ordering; allow the use of
visual materials; and generate high response rates. In-person
interviews, though, are the most costly method to administer and may
involve interviewer bias. Administration requires complex field
operations and involves the use of many documents and forms (i.e.,
calling cards, interviewer evaluation forms, verification forms). For a
more in-depth discussion of each method, see EPA, ``Survey Management
Handbook,'' vol. II, pp. 24-35, 230/12-84-002, December 1984.
In analyzing the advantages and disadvantages of the use of each
method for CV surveys of natural resource damages, NOAA considered the
Panel's report. In that report, the Panel stated that ``[i]t is
unlikely that reliable estimates of values could be elicited with mail
surveys. Face-to-face interviews are usually preferable, although
telephone interviews have some advantages in terms of cost and
centralized supervision.''
While recognizing that mail surveys can provide invaluable
information for many academic studies and regulatory purposes (e.g.,
U.S. decennial census), NOAA believes that mail surveys at this time
lack certain features that are desirable for use in the natural
resource damage assessment area. In deciding between the use of
telephone and in-person surveys, NOAA suggests that the trustee(s)
consider seriously the use of in-person interviews for the final survey
because of the characteristics of a survey needed for damage assessment
purposes. A CV survey designed for natural resource damage assessment
purposes is likely to impart a large amount of information to
respondents causing interviews to be lengthy and often complex. In-
person interviews offer the opportunity to motivate the respondents and
to hold their interest by providing important information in a
graphical and pictorial format and asking interactive questions
regarding the respondents' understanding and acceptance of key features
of the instrument. It also permits interviewers to record verbatim
responses to important open-ended questions. Such information may be
critical in demonstrating that the trustee(s) has adhered to the
regulatory standards proposed by NOAA.
Even though NOAA recommends the use of in-person interviews for the
final survey, it recognizes that there may be instances where other
modes of administration may be appropriate. Therefore, under the
proposed rule, selection of the mode of administration is left to the
discretion of the trustee(s); however, the trustee(s) must document the
rationale for the selected mode of administration. NOAA anticipates
that this documentation would include a discussion of the factors that
led the trustee(s) to reject use of in-person interviews.
NOAA also encourages the trustee(s) to consider the use of modes of
administration other than in-person interviews during the survey
instrument development stage. For example, a telephone survey may be an
appropriate and cost-effective method to test a design feature such as
question ordering or the understanding of technical terms. Further,
NOAA is interested in comparative empirical testing of other
administration modes, such as random digit dialing for initial
contacts, followed by mailed descriptive information and visual
materials, culminating with a telephone survey. If such testing
demonstrates that other modes can produce the type of information and
results comparable to in-person interviews, NOAA would encourage the
trustee(s) to consider the use of those methods for the final survey.
Regardless of the mode of administration, NOAA proposes that all
surveys be administered by a survey research organization because the
preparation and administration of a general population survey require
practical survey expertise and substantial logistical support. NOAA
also recommends that the trustee(s) select a survey research
organization that has implemented procedures to meet the standards
outlined in either the Council of American Survey Research
Organizations' Code of Standards for Survey Research or the American
Association for Public Opinion Research's Code of Professional Ethics
and Practices. Use of such an organization will help to maintain
reliability and confidentiality. Further, such organizations are likely
to have proven track records and the staff necessary to conduct a
survey in accordance with the proposed regulatory standards.
Nature of Results. In addition to the standards for survey
instrument design and development and for survey administration, the
proposed rule contains a standard for evaluating the results of CV
surveys. The Panel report stated that one indication that a CV study is
unreliable is when respondents show inadequate responsiveness to the
scope of variations in the environmental insult. This statement
suggests that the Panel was concerned that WTP be sensitive to
characteristics of the described natural resource injuries and of
methods of preventing those injuries or restoring the injured
resources. The proposed rule includes a performance standard to address
this concern.
The scope of an environmental insult such as a discharge of oil is
multi-dimensional, where the dimensions are influenced by biological
and social attributes. A discharge can affect all or part of an
ecosystem. Its effects can be short- or long-lived, lethal or
sublethal, geographically contained or widely dispersed. From the human
perspective, the effects of a discharge may be directly visible and
disturbing, or out of sight and perceived only indirectly once there is
knowledge about the loss of natural resources.
In the first phase of the scope analysis, the many dimensions of
the scope of the discharge under investigation need to be identified.
Once the trustee(s) has defined the dimensions of scope deemed to be
important to passive use losses, the trustee(s) shall employ a split
sampling technique where some respondents are provided with a
FR Doc. 94-225 Natural Resource Damage Assessments
n
alternative survey instrument. The trustee(s) begins the analysis with
the primary survey instrument that will be used to estimate the passive
use losses due to the discharge in question. This instrument is
designated the base instrument. It is assumed that the trustee(s) has
pre-tested and performed field pilot tests on the instrument and is
convinced that the instrument meets the design or guidance criteria
laid out in the proposed rule. Analyses performed using incompletely
developed or tested preliminary instruments cannot be considered
evaluations of scope sensitivity because in these situations it is not
possible to distinguish the effects of variations in instrument design
from those effects on respondent decisions of changes in the scope of
injury or the proposed program.
In designing a CV survey instrument, the trustee(s) must determine
the dimensions of scope that are relevant to the discharge under
investigation and decide whether there exists a subset of dimensions
that are important to passive use value or whether all of the
dimensions are linked and therefore equally important. In cases where a
subset is deemed important, the trustee(s) must choose whether to scale
these dimensions up or down in relation to the levels described in the
base instrument and by how much to scale the dimensions. If all
relevant dimensions are to be scaled, the trustee(s) must still decide
in which direction and magnitude to scale each dimension. The
dimensions should be designed to be ordinal in scope, i.e., A>B>C,
unless such ordinal scope is infeasible.
After the trustee(s) has decided on the dimensions to be scaled, in
what direction and by how much, the trustee(s) shall produce second and
third instruments that differ from the base instrument only with
respect to the scope dimensions. NOAA recognizes that the trustee(s)
may choose to scale dimensions regarding the injury description,
dimensions concerning the CV prevention or restoration programs offered
to respondents, or both.
After the scaled instruments are pre-tested, all three instruments
should be employed in a split sample design. Since inferences to the
relevant population will not be part of a scope analysis, true
probability sampling is not required and convenience samples may be
employed so long as random assignment of the two treatments is
maintained. The trustee(s) should endeavor to employ large samples in
these analyses since scope effects may be small and large samples will
be needed to attain the desired 95 percent confidence levels of
statistical significance. The trustee(s) is free to demonstrate
sensitivity to scope using statistical techniques of its choosing;
however, pooling both samples and employing a simple dichotomous
variable (analysis of covariance) framework allowing general
differences in the WTP valuation function will usually be a sufficient
basis for testing. In some circumstances, more complex designs may be
required.
The validity of the scope analysis depends upon the respondents'
perception of differences in the scope dimensions across the three
treatments. It is incumbent upon the CV designer to include questions
that can be used to determine whether the understanding and credibility
criteria laid out in these regulations have been met. This
determination is vitally important and, if it is found to be violated,
the analysis may lead to unreliable results.
The three-scenario approach is not required when the trustee(s)
provides a reasonable showing that it is infeasible due to
considerations of cost or lack of plausibility of the scenarios. In
such circumstances, the trustee(s) may perform the analysis using only
the original scenario and one alternative scenario. However, as CV
surveys of passive values are routinized and their costs fall, the
trustee(s) may find that the three-scenario analysis is feasible in
most cases.
Concern was expressed that differences between the scenarios not be
so large that passing the total value test would be a foregone
conclusion, nor so small that it would be very difficult to demonstrate
statistical differences without extremely large (and costly) split
samples. The issue is complicated by the possibility, based on the
State of Alaska-sponsored study of the Exxon Valdez spill, that a
significant minority of the population may be insensitive to any
reasonable differences in scenarios: some individuals may not be
willing to pay anything for any environmental cleanup, others may be
willing to pay unrealistically high (and invariant) amounts for any
size environmental cleanup. The trustees are to develop procedures for
identifying these people, so that the demonstration that the scenarios
are meaningfully different would rest on the remaining participants. To
accept the scenarios for the total value test, no more than 95% of the
remaining participants may indicate that the differences between the
scenarios are real and meaningful--i.e., that the values of the
respective commodities differ. NOAA is seeking comment on whether it is
feasible to design such a procedure to demonstrate differences in
scenarios, and if not, on alternative schemes to achieve a comparable
goal. For example, the total value test is to be performed on split
samples: how should ``insensitive'' individuals be excluded? If so, how
should the threshold defining ``meaningful differences'' be
characterized? Is it feasible to identify scenario differences also
using a split sample procedure? If not, should the threshold criterion
for determining ``meaningful difference'' be adjusted, since
individuals impose internal consistency on their answers in the face of
direct comparisons (recognizing much finer differences than in split
samples)? Once a procedure has been developed to determine if
individuals are sensitive to the scope of the injury, should this
information be incorporated into the selection of the sample for the
total value test?
While the proposed rule requires a split sample with multiple
scenarios for demonstrating the total value test, NOAA seeks comment on
the option of alternatively using an indirect test to explain variation
in WTP as a function of independent variables, including belief in the
size of the damage scenario, and/or effectiveness of the avoidance
policy. Commenters should consider under what circumstances an indirect
test should be allowed for performing the scope test. An indirect
approach examines the sensitivity to scope indirectly through the use
of a WTP valuation function, relying entirely on the base instrument.
In the context of a single dichotomous choice referendum (or a double
bounded formulation), a WTP valuation function may relate the
probability of a yes vote to a list of variables assumed to underlie
the voting decision (e.g., the amount the household is asked to pay,
household demographics, etc.). The indirect approach may expand this
list to include variables based on information collected from
respondents that are related to the scope dimensions of the discharge.
These measures must be meaningful to the respondent given the
information provided in the survey. For example, a useful question
following the WTP elicitation question is one that asks whether the
respondent believed the injuries caused by the discharge were more
severe or were less severe than described. All other things equal
(i.e., similar preferences, budget constraints, etc.), respondents
believing the injuries to be worse than described, and having equal
confidence in the prospects for restoring the injured resources through
the offered plan, might be willing to pay more. Such a finding would be
an indirect verification of scope sensitivity.
``Calibration''
Estimates of hypothetical willingness-to-pay (WTP) may incorporate
biases in opposite directions. On the one hand, the appropriate measure
of damages is willingness-to-accept (WTA) not WTP, although the former
is not recommended in the proposed rule because of a concern for
limited reliability of current procedures for eliciting WTA. There are
theoretical arguments for why WTA may exceed WTP by a substantial
margin in a natural resource context with relatively few substitutes,
although there is debate on this point. On the other hand, several
experimental studies (of a lower quality survey design than proposed in
this rule) suggest that stated intentions of WTP in CV surveys exceed
observed responses in simulated markets or in solicitations for
charitable contributions. (There is, however, debate as to whether the
simulated markets or charitable contribution solicitations capture
``actual'' WTP in the available studies.)
Because of the various possible biases, a discount factor is
included in the proposed rule to apply to estimated WTP. The proposed
rule gives a default factor of fifty percent for the purposes of
soliciting comment. However, the trustee(s) may adopt a different
calibration factor if it can be shown that a different factor is
appropriate for a specific application of CV. NOAA is asking commenters
to propose other reasonable calibration tests. In particular, NOAA
requests comment on how such calibration could be done consistent with
the framework of these proposed regulations and for the type of public
goods likely to be injured by an oil spill. Commenters should consider
adopting a stringent discount factor while at the same time suggesting
relaxing some of the other standards contained in the proposed rule.
Reporting. Because a well-designed study will include questions
that assist in the interpretation of responses to the WTP elicitation,
the final report should include a breakdown of WTP by various
categories such as income, belief in the scenario, and attitudes toward
the environment. Data from the survey should be retained by the
trustee(s) and ultimately made part of the administrative record once
the trustee(s) considers the survey a public document.
Additional Guidance. NOAA recognizes that implementation of a CV
survey requires decisionmaking about a variety of features, not all of
which are specifically addressed in the standards in the proposed rule.
In many instances, the trustee(s) can turn to established economic
theory and survey research for guidance, but in other instances
economic theory and survey research provide little or no guidance and
reasonable decisions must be based on other criteria. In these
circumstances, NOAA recommends that the trustee(s) follow a
conservative approach. That is, when one is deciding among
alternatives, and economic theory or survey research cannot inform the
decisions, the trustee(s) is encouraged to choose that alternative that
would understate the natural resource damages rather than overstate the
damages.
The following examples are instructive. Suppose the trustee(s)
selects a referendum framework for the elicitation of willingness-to-
pay values from respondents. Using such a framework, respondents might
be asked to vote on a program that would be paid for in a one-time (or
lump-sum) payment, or annually over a period of years. Economic theory
does not generally differentiate between these two alternatives,
viewing each as equally appropriate. However, because it is less
financially burdensome for credit-constrained individuals to make
installment payments than to pay for a good in a single payment,
requiring payment only for a proposed restoration or protection program
in a lump-sum may provide a smaller value than if the same individuals
were asked to pay in installments. In this case, the adoption of a
conservative approach would lead to the use of the lump-sum payment.
Similar decisions involve the selection of photographs for use in the
description of injuries or the proposed prevention or restoration
program in a CV survey. While a picture of dead, oiled sea otters might
accurately depict an injury, NOAA believes that more neutral
photographs would be the appropriate and conservative approach.
Additional examples of conservative design and guidance can be found in
the Response to Comments section of this preamble.
Request for Comments
NOAA requests comments directed toward additional tests for
determining the reliability of CV results that could be considered for
inclusion in a more detailed guidance document. NOAA intends to work
with the Department of the Interior to develop a guidance document on
use of CV to estimate passive use values. This document will provide
additional technical information on possible means of satisfying the
standards contained in the proposed rule as well as other issues
involved in conducting CV studies. In order to evaluate any additional
tests, NOAA requests that commenters proposing such tests address four
issues. First, NOAA requests that commenters provide a complete list of
the behavioral assumptions underlying their theoretical framework of
rational choice. NOAA assumes that all commenters will begin with the
generally accepted axioms of neoclassical consumer choice theory or
revealed preference theory. NOAA requests that commenters clearly state
all further assumptions underlying the test and describe the
sensitivity of the test's results to the assumptions presented. Second,
if commenters are proposing tests that rely on marginal or infra-
marginal changes in the scope of the injuries, the commenter should
define the variation of quantity dimensions of injuries involved in the
test. Third, and perhaps most important, NOAA asks that commenters
demonstrate that any proposed test can be accomplished feasibly within
the CV design and administration standards specified in the proposed
rule. Tests causing CV surveys to violate these design and
administration standards are themselves unreliable tests. Finally, the
commenter should give examples of how these tests would be structured
in the context of an oil spill.
``Prior Knowledge''
The objective of conducting a CV study in connection with these
regulations is to determine the damages suffered by the public as a
result of a discharge of oil into the environment. For consideration of
passive use values, the relevant public may include the entire U.S.
population, or may include a regional subset of the population. Damages
may be sustained by each individual in the relevant public, but only a
small fraction of the public will actually participate in the survey.
The damages an individual suffers from an oil spill depend on many
factors. These include the effects of the spill on the natural
environment, how much the individual uses the services provided by the
injured environment, individual preferences, and the individual's
information about the spill and the world in general.
In conducting the survey, it is necessary to educate the respondent
about the natural resource itself, the facts surrounding a spill and
the impacts of the spill on the environment. This education process
greatly changes the respondent's information set. Upon gaining this new
information, respondents are then asked to place a value on the damages
suffered. There is general agreement that the losses an individual
experiences from the spill after learning the new information are
likely to be systematically different than the losses they would
experience prior to learning the new information. The fact that the CV
method itself actively changes the information set of an individual
prior to valuing the good or service makes it fundamentally different
than other economic valuation methodologies.
Some commenters have questioned whether it is appropriate to
extrapolate value estimates based on post-survey information to the
general population. Given the assessment's objective of estimating
damages to the public at large, the small fraction of the public that
actually participates in the survey, some have argued that the relevant
information set for the purposes of extrapolating to the general
population is the pre-survey information set. One way to move towards
value estimates that reflect the information set of the general public
is to obtain information in the survey itself regarding respondents'
pre-existing knowledge about the resource and injury to it. Regardless
of the value a respondent states after learning information from the
survey, those respondents who were not aware of the resource or an
injury to it or both would be assigned a value of zero. The rationale
for assigning a zero value is that if X percent of the survey
respondents did not know about the resource or injury, then X percent
of the relevant public is likely to be similarly uninformed. (Implicit
is the assumption that individuals who are unaware of the injury at the
time of the survey would continue unaware, but for the survey, for the
foreseeable future.)
Other commenters have articulated the point of view that the level
of respondents' prior information about the injury is irrelevant to the
determination of natural resource damages. The basis for this position
is that the resources being injured are common property resources, for
which governments and Indian tribes are the trustees for the public.
Consequently, to determine fair compensation for injury to property
held in the public trust, the responsible parties should contract to
provide full compensation to all members of the public ex ante, based
on information about expected injuries. By this logic, it is
inappropriate to require that respondents' values only be counted if
they were aware of the injured resources before the survey.
NOAA seeks comments on whether or not it is appropriate to use
information regarding pre-existing knowledge of respondents to reassign
to zero any positive values expressed by individuals who were unaware
of the injuries prior to the survey in the calculation of natural
resource damages. Commenters who believe that it is inappropriate to
assign zero damages to individuals with limited prior knowledge should
articulate their rationale for using the post-survey information set to
extrapolate damages to a public that only has pre-survey information.
``Screening or Threshold Factor''
Because of a concern by many commenters that CV surveys may be
undertaken in damage cases where expected damages may be too small to
justify the costs of the CV survey, NOAA is seeking comment on the
concept of a screening factor the trustee(s) should apply in deciding
whether to conduct a CV survey in a particular case. Factors currently
limiting the use of contingent valuation include the high costs for
surveys to meet the proposed requirements, trustee budget and staff
limits, trustee desire for speedy judgment to enable expeditious
restoration activities, and the procedures necessary to justify a
Comprehensive Damage Assessment (the only assessment procedure
incorporating contingent valuation surveys). To employ an additional
screening factor, expected damages might be estimated using a small
sample with protocols designed to minimize survey costs and, therefore,
not necessarily subject to the standards contained in this rule.
Alternatively, expected damages might be estimated by scaling damages
estimated in other contingent valuation studies. Other methods may be
possible. Several/possible thresholds have been suggested. These
possibilities include setting the threshold for a particular case at
the greater of twice the expected cost of a full CV survey or the
product of multiplying $5.00 per household by the number of households
expected to hold passive values for the resource of concern. NOAA is
specifically seeking comment on the concept of setting such a screening
factor and, if so, what form such a factor might take, and whether it
should apply to total damages or only to passive use losses.
2. Alternative methods--a. Benefits transfer approach. Given the
expense and time associated with designing and implementing site-
specific studies or models to value resource services, ``benefits
transfer'' may be a reasonable alternative method to determine interim
lost values. Benefits (or valuation) transfer involves the application
of existing valuation point estimates or valuation functions and data
that were developed in one context to address a similar resource
valuation question in a different context. Benefits transfer provides a
less time consuming and less expensive procedure than original
valuation analysis, but may not provide as accurate results.
Where resource values exist that have been developed through an
administrative or legislative process, the trustee(s) may use these
values, as appropriate, in a benefits transfer context. An example of
such values is found in the approach to use in estimating recreational
benefits given in Chapter II, Section VIII, Appendix 3 (pp. 83-87) of
Economic and Environmental Principles and Guidelines for Water and
Related Land Resources Implementation Studies; U.S. Water Resource
Council, February 1983. Other values may be used so long as three basic
issues are considered in determining the appropriateness of their use:
the comparability of the users and of the natural resource and/or
service being valued in the initial study(ies) and the transfer
context; the comparability of the change in quality or quantity of
resources and/or services in the initial study and in the transfer
context (where relevant); and the quality of the study(ies) being
transferred.
It may be possible in some contexts to tailor the results from a
prior study to the site of the discharge by transferring or creating a
valuation function characterizing willingness-to-pay as a function of
socioeconomic, demographic, or discharge characteristics. Where data
from the site of the discharge are available, the valuation function
may be used to calculate site-specific resource values.
Comparability of the Resource/Services
To evaluate whether existing data are sufficiently similar to the
conditions of a particular assessment to allow a benefits transfer, the
trustee(s) should consider at a minimum the following questions: Are
the markets for the services in the original study similar to those
services being valued, in terms of size of the user population and
availability of substitutes? Does the existing study consider the same
or a similar geographic area in terms of demographic and socio-economic
characteristics? Were baseline environmental (and other) conditions in
the existing study similar to baseline conditions in the case at hand?
Did the existing study address a specific or unique problem that may
have influenced the magnitude of the estimates obtained? Have general
attitudes, perceptions, or levels of knowledge changed in the period
since the existing study was performed in a way that would influence
the value of the benefit estimate? If the value being considered is for
a generic resource category (e.g., common song birds), are the species
considered in the original study relevant to the case at hand?
Comparability of the Change in Quality or Quantity
To evaluate the comparability of the changes in quality or quantity
of resources and/or services in the existing study and in the incident
of concern, the trustee(s) should consider at a minimum the following
questions: Was the original analysis conducted to value all organisms
of a given species, a sub-population, individual members of the
species, or some other grouping? Is this level of analysis suited to
valuing injuries at the site(s) of impact? Is the discharge-related
change in the resource and/or service in question within the range of
changes valued in the original study?
Quality of the Study
To evaluate the quality of the existing study, the trustee(s)
should consider at a minimum the following questions: Was the initial
study based on proper survey design and sampling procedures, sound
economic analysis, and appropriate statistical techniques? Was the
study peer reviewed? If current ``best practice'' was not used to
generate the value estimate(s), can the estimate(s) be adjusted to
reflect changes in the state-of-the-art?
In all cases the trustee(s) should evaluate all available estimates
and/or valuation functions, based on the factors described above, to
determine which are the most appropriate for benefits transfer.
Consideration should be given to the range of value estimates generated
from alternative methods. If the value estimates in the relevant
studies differ significantly, or if values generated using alternative
models within the same study differ significantly from one another,
consideration should be given as to whether the values differ in a
predictable and consistent manner. Such predictable variation may
indicate that a more selective choice of studies or models would be
appropriate for the specific context.
It is recommended that use of benefits transfer by the trustee(s)
in a natural resource damage assessment be predicated on guidance from
the professional and academic economics community on the current
minimum conditions for quality assurance of the benefits transfer.
The Economic Analysis and Research Branch of the U.S. EPA, Office
of Policy Planning and Evaluation has prepared a data base,
Environmental Economics Database, of some of the existing natural
resource or environmental resource valuation studies that are available
to the trustee(s). This database may be obtained from the Economic
Analysis and Research Branch, Office of Policy Planning and Evaluation,
U.S. EPA.
b. Habitat or Species Replacement Cost Method. Alternatively, the
habitat or species replacement cost methodology may be used to estimate
damages for lost services from injured habitats and/or biological
resources. This method is suitable for use when the trustee(s)
determines that the human services provided by the habitat or species
are difficult to quantify. This method involves estimating damages in
terms of the cost of obtaining from alternative sources the equivalent
of the value of services diminished by the injury until full recovery
of the resource and/or services. The recovery process may occur through
natural recovery or may be expedited or enhanced by human intervention.
If full recovery is not expected to occur, then the ``interim'' loss in
services continues in perpetuity. Depending on the nature of the
injury, damages may be calculated as the cost of replacing individual
species or of replacing entire habitats that support multiple species
and provide a variety of resource services. This methodology provides a
practical alternative to the sometimes difficult estimation of consumer
value in the valuation methods identified above.
In order to ensure that the scale of the compensatory restoration
or replacement project(s) on which the cost calculation is based does
not over- or under-compensate the public for injuries incurred, the
trustee(s) must establish an equivalency between the present discounted
value (PDV) of the quantity of lost services and the PDV of the
quantity of services provided by the replacement project(s) over time.
The trustee(s) is to incorporate a factor reflecting any differences in
the efficacy of replacement habitat or resources in providing services
from that of the injured habitat or resources in absence of the injury.
If the value of the additional units of services provided by the
replacement project is expected to be reasonably comparable to the
value of units of services lost due to injury, then equivalency may be
established by comparing total services without actually estimating a
dollar value of those services. However, the values may not be
comparable, for example due to changes in the scale of total services
or the temporal pattern of replacement services. In this case, an
adjustment factor reflecting the relative values should be included in
the calculation of equivalencies. Alternatively, another measurement
technique may be employed.
It may be useful to consider a specific scenario where the habitat
or species replacement cost method might be used. If ten acres of a
habitat were completely destroyed and no recovery is expected through
natural processes or restoration activities, the goal of the
restoration program would be to provide a replacement project
equivalent to the lost ten acres of habitat. However, since the
replacement project may not provide baseline levels of services for
several years at a minimum, the public will experience interim lost
services for which they are entitled compensation. Additional acres
will need to be replaced to make the public whole.
In another context with ten injured acres of habitat, the resources
and services may recover fully in five years with natural recovery, and
this may be the most appropriate recovery option. In this instance,
there will be no formal restoration program for this resource, but the
compensation for the five years of losses prior to full recovery can be
calculated in terms of the costs of a compensating restoration program.
Such a program might consist of acquisition and creation or enhancement
of habitat to provide a flow of services equivalent to the lost
services equivalent to the lost services.
Establishing the resource equivalencies necessary to ensure the
proper level of compensation is a four-step process. First, the
trustee(s) must quantify a total discounted measure of lost services
over the full duration of the injury, taking into account the extent to
which the resource and/or service will recover over time. These lost
services can be expressed in a resource-time measure, such as lost
``acre-years'' of services provided by an oiled wetland, where an acre-
year of services is the total level of services provided by one acre of
wetland over the course of a single year. Factors to be considered in
quantifying the level of services lost include, but are not limited to:
The severity of the initial injury (i.e., did the injury result in a
full or partial loss of services); the duration of injury; and the rate
of recovery of services.
The second step in establishing resource equivalency is to
determine the total discounted measure of services provided by the
proposed restoration or replacement projects over the full life of the
relevant habitat or species. Again, these services may be expressed in
a resource-time measure, such as acre-years. Factors to be considered
in quantifying the level of services provided include, but are not
limited to: the productivity of the replacement resource relative to
the productivity of the injured resource but for the discharge; the
amount of time required for the replacement resource to reach its
maximum productivity level; and the life-span of the replacement
resource. If the value of additional units of services provided by the
restoration project is not comparable to the value of lost services,
then an adjustment factor reflecting the relative value should be
included in the calculation of equivalency.
In the third step, the trustee(s) calculates the appropriate scale
of the replacement project(s), such that the total discounted value of
services provided by the replacement project is equivalent to the total
discounted value of interim lost services due to the injury. The final
step consists of the determination of replacement costs. Total
replacement costs are obtained by multiplying the scale of the project
(e.g., number of acres of wetlands to be created) by the unit cost of
restoration or replacement, including acquisition, construction,
maintenance, and monitoring costs. These unit costs can be obtained
either from existing literature values or from experts in the field.
IV. Implementation Guidance on Calculating Compensable Values
A. Committed Use
As stated in the proposed rule, damages are recoverable for all
committed uses of injured natural resources and/or services. For the
purposes of this proposed rule, committed uses include: (1) Any direct
or passive use of the injured natural resource and/or service available
to the public but for the discharge; and (2) any documented planned
future use. The concept of committed use is intended to avoid recovery
for purely speculative uses of injured resources and/or services. Any
future use is considered a committed use if it is adequately documented
through such things as permit application, purchase or investment
agreement, engineering or architectural plans, etc. Because there are
no behavioral records comparable to those that exist for direct uses,
documentation of committed use is not required for valuing passive use
losses and option values claimed under OPA as well.
B. Willingness To Accept and Willingness To Pay
Humans derive both direct use and passive use values from the flow
of services provided by natural resources. If the quantity or quality
of a service is reduced or eliminated by a discharge of oil, the
measure of damages to an individual is the change in the individual's
utility or level of well-being, as measured in monetary terms. Economic
analysis provides two exact monetary measures of any change in an
individual's well-being: Willingness-to-pay (WTP) and willingness-to-
accept (WTA). Given the occurrence of a discharge of oil, WTP would
measure the individual's willingness-to-pay to have avoided the injury;
WTA would measure the amount the individual would require in order to
be as well off (i.e., to have the same level of utility), given the
injury occurred, as before the injury. To calculate the monetized
change in an individual's WTP or WTA resulting from a resource injury,
net willingness to pay or willingness to accept is calculated. Net
willingness to pay or willingness to accept is total WTP or WTA minus
the costs an individual incurs to use the resource services, including
travel and time costs.
An approximation for the exact measures of the change in utility or
well-being is the Marshallian ``consumer surplus,'' the value of which
is between WTP and WTA. Marshallian consumer surplus is the difference
between the maximum sum of money an individual would be willing to pay
for a good or service, as calculated from a Marshallian demand
function, and the amount the individual is actually required to pay.
The Marshallian consumer surplus is calculated directly from observed
behavior in market or market-like transactions. This measure of value
of a good or service incorporates the income effects of changes in its
price or quality; for example, a reduction in price or an increase in
quality would have the effect of increasing real buying power. As a
result, Marshallian consumer surplus does not measure value from a
fixed baseline level of utility. In contrast, the exact measures of WTP
and WTA are so labeled because they calculate the monetized change in
utility or well-being from a fixed baseline level of utility.
The choice as to which criterion is more appropriate in a given
context depends upon the allocation of the property rights. Because the
government is holding natural resources in trust for the public, the
WTA criterion is more appropriate as the measure of damages. The
conventional wisdom in the academic literature regarding changes in the
price of a commodity indicates that WTP and WTA are likely to be fairly
close in value, with the difference depending directly on the size of
the income elasticity of demand for the commodity whose price changes.
However, it has recently been shown that in this context where the
quality of public goods or services is reduced due to injuries caused
by a discharge, the difference between WTP and WTA may be substantial
if the public goods have few substitutes.
In some circumstances it may be infeasible or impractical to
provide reliable measures of WTA. In those circumstances, the more
conservative measures of WTP or the Marshallian consumer surplus are
appropriate for measuring damages. For example, WTA is very difficult
to elicit from respondents in CV studies, and consequently may create
greater empirical uncertainties than eliciting WTP. At present,
recognizing that WTP provides a lower-bound estimate of WTA (for normal
goods), NOAA recommends that the more conservative WTP criterion be
elicited in CV studies at present. For the methodologies in which exact
welfare measures, providing the monetized changes in individual
utility, can be derived from the Marshallian models through analytical
techniques, WTA and WTP measures are of equal reliability. In those
circumstances, WTA should be used where feasible and practical.
C. Substitutability
In calculating the diminution of value, the availability of
substitute resources and/or services should be taken into account. For
example, substitutes may exist for individuals who have lost or
diminished use of a resource and/or service, such as a recreational
site. Generally, the fewer substitutes available for a particular
resource and/or service or the poorer the match of attributes between
the injured and substitute sites, the greater is the lost value to the
public. However, though substitute sites may exist, congestion at these
sites will increase as they absorb displaced participants from the
injured site. Consequently, the quality of the recreational experience
at the substitute sites may deteriorate due to the discharge. Potential
effects of congestion on reducing quality at alternate sites should be
taken into account in the damage calculation.
Incorporating the availability of substitute resources and/or
services, for example in recreational demand models, may increase the
cost and complexity of a damage assessment. Therefore, the additional
cost and complexity should be undertaken only if the probable benefits
from an increase in accuracy of the damage estimate are greater than
the probable increase in damage assessment costs.
D. Uncertainty
Uncertainty regarding the predicted consequences of restoration
options and predicted supply and demand of natural resources and/or the
services they provide should be addressed in the economic analysis of
restoration alternatives and determination of diminution in values and
documented in the Report of Assessment.
E. Discounting
In calculating natural resource damages, the trustee(s) should
discount the three components of a claim: (1) Interim lost value of
injured resources pending full recovery, also referred to as
compensable values; (2) restoration costs; and (3) damage assessment
and restoration costs already incurred. Discounting is a widely used
economic procedure that allows the trustee(s) to convert past and
future damage sums to current dollars. (Discounting expenditures from
the past to the present is also referred to as capitalizing or
compounding forward past expenditures.) This conversion is necessary
for the trustee(s) to be able to present a claim for a ``sum certain.''
NOAA recommends that the trustee(s) use the U.S. Treasury borrowing
rate on marketable securities of comparable maturity to the period of
analysis to discount each of the components. The reference date for the
discounting calculation is the date at which the claim is presented.
Note that discounting the components of the claim is separate from
calculating the pre-judgment interest. Section 990.14 of the proposed
rule, as required by section 1005(b) of OPA, provides for pre-judgment
interest and post-judgment interest to be paid at a commercial paper
rate, starting from 30 calendar days from the date a claim is presented
until the date the claim is paid. (For a discussion of pre-judgment
interest see the earlier preamble discussion of Sec. 990.14 of this
proposed rule.)
Logical consistency requires that the analysis be conducted either
in terms of nominal values or in constant dollars. The nominal Treasury
rate shall be used if the components of the claim are denominated in
dollar values of the year a loss or expenditure is to occur (i.e., in
nominal terms). Otherwise, if components of the claim are denominated
in constant dollars (of the discounting reference year), then real
Treasury rates are to be used. The real rates are calculated by
removing expected inflation over the period of analysis from nominal
Treasury interest rates. To characterize expected inflation, NOAA
recommends the trustee(s) use the Administration's assumption about the
rate of increase in the Gross Domestic Product deflator for the period
of analysis (as reported in the Budget of the President). For projects
or programs that extend beyond the six-year budget horizon, the
inflation assumption can be extended by using the inflation rate for
the sixth year of the budget forecast. The logic of the choice of the
U.S. Treasury rate is discussed for each component of the claim in turn
below.
1. Compensable values. The compensable values component of the
damage claim reflects the lost consumer surplus, lost fees, and lost
economic rent (that could have been charged by the government for use
of a public resource) resulting from injuries caused by the discharge.
The losses may occur from the time of the discharge over many years
into the future. To value these losses, the trustee(s) must determine
how much compensation consumers would require as of the date of the
claim presentation to make them as well off as they would have been,
but for the discharge. Because the purpose of the litigation is to make
the public whole, the relevant discount rate is the consumers' rate of
time preference, which is the rate of interest at which an individual
would be indifferent between consuming goods or services in the present
and postponing consumption to a later date.
Market interest rates available to consumers provide an estimate of
the consumer rate of time preference for lost services. To identify the
discount rate that reflects the ``pure'' time preference, one looks to
the yield on a ``safe'' investment with little or no default risk, such
as the U.S. Treasury rate.
2. Estimated restoration costs. Most restoration projects will be
carried out over a period of years. The effectiveness and ultimate
success of a restoration strategy depends on the ability of the
trustee(s) to conduct restoration activities until the resource
recovery is complete, including post-construction maintenance and
monitoring operations. If funds are insufficient to cover the full
costs of restoration, natural resource recovery will be incomplete or
will be further delayed, and the public will be deprived of full
compensation for the injuries. The recommendation that trustee(s) use
the U.S. Treasury rate for marketable securities of comparable maturity
to the period of analysis is predicated on the assumption that this
rate of return is available to the trustee(s) for investment of
settlement monies.
If legal and/or institutional constraints prevent investment of
settlement monies yielding the U.S. Treasury rate, then it is incumbent
upon the trustee(s) to structure the damage claim to ensure that
sufficient funds will be available to fund the entire set of
restoration activities. One option is to calculate the discounted value
of this component of the claim, using an alternative discount rate that
represents the yield on settlement monies available to the trustees. An
alternative option is to structure a multi-year schedule for claim
payments to ensure it provides the cash flow for each year required for
planned expenditures.
3. Past Costs Incurred. The third category of damages is damage
assessment and emergency restoration costs, which may have been
accruing from the time of the discharge. To calculate the present value
of these costs at the time the claim is presented to the RP, the
trustee(s) will discount forward (also referred to as capitalize or
compound forward) the costs already incurred. Note that if the trustees
are discounting damages denominated in the year the claim is presented
(i.e., constant dollars) using a real Treasury rate, then expenditures
from previous years must also be translated to dollars of the claim
year using an appropriate inflation index, prior to discounting (or
compounding forward). Because the rate of interest employed as the
discount rate for past costs incurred should reflect the opportunity
cost of the money spent, NOAA recommends the U.S. Treasury rate for
discounting this component of the claim as well.
U.S. Treasury bond rates may be found in the Federal Reserve
Bulletin, issued monthly, or the Treasury Bulletin, issued quarterly.
The Gross Domestic Product fixed-weighted price index may be found in
the Survey of Current Business, issued monthly, and the Economic Report
of the President, issued annually. The Administration prediction for
future Gross Domestic Product deflators (for translating the nominal
Treasury rates to real terms for future years) is updated twice
annually at the time the budget is published in January or February and
at the time of the Mid-Session Review of the Budget in July. The
current Treasury rates and inflation adjustment assumptions are
reported in regular updates of Appendix C of Circular No. A-94,
available from the OMB Publications Office (202-395-7332).
Response to Comments
``Value of a Claim''
Comment: Commenters were divided over interpretation of the meaning
of ``diminution of value'' within the natural resource damage
assessment context. Some suggested that there was no clear indication
provided, either by the courts or the Congressional Conference Report,
as to the intent within CERCLA and OPA concerning measurement of
diminution of value. Others disagreed, finding specific guidance on
this matter. Two commenters quoted the ruling by the court in Ohio v.
DOI to mean that values should not be limited to strictly consumptive
use values, but also should include non-consumptive use values.
Response: NOAA finds that there is ample evidence, from the
Congressional Conference Report (H. Conf. Rep. No. 653, 101st Cong., 2d
Sess. at 108), and the D.C. Circuit Court decision on Ohio v. DOI, to
believe that ``diminution of value'' refers to the standard for
measuring resource damages cited in the D.C. Circuit Court decision on
Ohio v. DOI. This opinion defines ``use values'' broadly, to encompass
both direct use and passive use values that can be reliably measured.
Failure to include all relevant categories of damages in a claim would
understate the true loss to the American public attributable to a
discharge of oil. NOAA concurs with commenters that recoverable losses
include direct consumptive use losses (for example, to hunting or
fishing activities), direct non-consumptive use losses (for example,
bird watching or swimming activities), and passive use losses (for
example, existence values).
Comment: Some commenters argued that passive use values should be
included in damage assessment, because exclusion would understate the
true cost of exposing natural resources to environmentally risky
activities and induce systematic reallocation of environmentally risky
activities to those environments that generate greater passive use
values relative to direct use values. Another commenter stated that if
passive use values are not considered in the determination of total
value of the resource, it is more likely that the cost of restoration
will be inappropriately characterized by the RP(s) as ``grossly
disproportionate'' to the value of the resource being restored.
Other commenters contended that in some cases the cost of trying to
measure the passive use losses may well exceed the potential total
value of passive use damages, and hence the effort would not be
worthwhile and would violate the reasonable cost test.
Response: As previously stated, under OPA, and in accordance with
the Ohio decision, passive use values are a component of compensable
values that are necessary to compensate fully the public for its losses
resulting from a discharge and to return the public, as nearly as
possible, to the level of well-being it enjoyed before the discharge.
By determining total compensable value, the natural resource trustee(s)
avoids serious resource misallocation effects. When the true value of
the loss is positive, but not known with certainty, the use of zero as
a measure of that positive loss will be in error, creating downward
bias in the damage estimate by understating the true social loss. The
result of such a systematic bias will be: (1) Smaller than appropriate
recovery for, and thus investments in, restoration, rehabilitation,
replacement, or acquisition of equivalent resources; (2) smaller than
appropriate investments in spill prevention, mitigation, and clean-up
technology; and (3) more intensive use of the natural resources of the
nation than appropriate. Thus, it is important that the total
compensable value be determined to rebut an argument that the cost of
restoration is grossly disproportionate to the value of the resource
being restored. However, as discussed earlier in this preamble, NOAA is
not adopting a strictly quantitative approach to the grossly
disproportionate determination. Rather, a number of qualitative factors
must also be considered.
The decision to include passive use value estimates as part of
total value in a damage assessment should be predicated upon the
probable magnitude of passive use losses associated with a specific
discharge, as well as on the specific attributes of the injured natural
resources. If the expected value of the passive use loss is small
relative to the cost of estimating it, then its inclusion in the damage
assessment may not be justified.
Comment: A number of commenters asserted that passive use value
damages should only be assessed for permanent or long-lasting injuries
to unique natural resources--atypical conditions for discharges of oil.
They argued there is no need for compensation for lost passive use
values when the resource will fully recover and when compensation will
be paid for direct use losses pending restoration. They further argued,
even when significant lost use values are present, the potential for
significant lost passive use values is not very great. One commenter
stated that this criterion applies most obviously in the case of
bequest value when resources will be restored in a reasonable time
frame and so future generations will not be denied the bequest. One
commenter stated that there is no credible evidence that inherent or
existence values are likely to be significant even if the resource is
unique and non-reproducible and the injury is irreversible.
Response: NOAA has found no empirical evidence to suggest that a
natural resource must be unique (i.e., have few substitutes), non-
reproducible and/or permanently injured in order to have significant
passive use values. NOAA recognizes that in cases involving temporary
injury, individuals may not experience a significant sense of loss
because the resource's existence is not permanently threatened.
Further, after restoration, rehabilitation, replacement, and/or
acquisition of equivalent resource, the resource will be available for
future use and may be left as a legacy to future generations. However,
there are cases where the death of individual members of a species may
cause a significant loss in passive use values even though species
levels may return to baseline. While complete recovery of an injured
resource or service may result in lower passive use losses than
otherwise, there is no evidence to suggest that compensable passive use
losses do not exist in the interim pending recovery. The extent and
magnitude of the losses will depend on the restoration alternative
chosen, biological and ecological factors, including availability of
substitute resources, and the type and extent of the original injury.
Comment: Several commenters expressed concern as to whether
``option values'' and/or ``existence values'' could be affected by a
discharge, if the injured natural resources were ultimately restored
through natural recovery or restoration. One commenter suggested that
option values arise because of uncertainty about future availability
and future demand for the resources in question. Thus, the shorter the
elapsed time between injury and restoration, the less such uncertainty
will matter. Similarly, several commenters suggested that passive use
losses may be small or insignificant in situations where the loss in
services is only for a short period of time until restoration or
natural recovery is completed. Therefore, there is no reason to include
passive use losses in a natural resource damage assessment.
Response: Regardless of whether complete recovery occurs naturally
or through human intervention (i.e., restoration), there may be a loss
or diminution of passive use values during the time period from the
injury through recovery. For example, in the case of ``option'' value,
the precise timing of a decision to exercise the option to use the
resource may be unspecified, therefore the potential for access must be
continuously available to maintain the full value of the option. Absent
the uninterrupted opportunity to exercise the option to access the
resource, the ``option'' is diminished and a loss accrues. Likewise,
even when complete restoration to baseline conditions is possible,
during the time between injury and recovery, the resource, as defined
prior to the discharge, effectively does not exist. Therefore,
existence value may be diminished. In addition, individuals may
experience a loss in well-being because animal deaths occurred through
anthropogenic causes. The size of passive use value losses is an
empirical question that can only be answered with further empirical
studies in these cases.
Comment: One commenter noted the difficulty of disaggregating total
values into direct use and passive use components.
Response: NOAA believes that a consensus is emerging in the
economics community that the appropriate conceptual approach for
valuing natural resources is to measure the total value of the
resource, which includes both direct use and passive use values.
Contingent valuation is the only methodology currently available to
provide estimates of combined direct use and passive use value. When
other valuation studies are included in a damage assessment along with
a CV study, the total damages are to be calculated in such a way as to
avoid possible double-counting for compensable values between estimates
from the contingent valuation study and from the direct use valuation
study(ies).
Comment: Several commenters noted that OPA prohibits double
recovery in the damage assessment claim. They claimed that CV as
currently applied results in double recovery.
Response: NOAA believes that direct use and passive use losses are
additive and the inclusion of each in the damage assessment does not
result in double recovery. However, the potential for double recovery
does exist when a CV study and a direct use study both elicit direct
use values in the same category in samples covering the same
usergroups. For example, if the trustee(s) considers use of both CV-
based and travel cost method-based estimates of the value of
recreational fishing losses, double recovery could occur if the
relevant CV study elicited total value of the resource and its sample
included recreational anglers. Double recovery can be avoided through
careful preparation of the damage claim.
Comment: One commenter suggested that CV cannot be justified on the
grounds that it is necessary to provide incentives for deterrence of a
discharge, without a careful analysis of the entire system of
regulations and other incentives that a potential RP faces.
Response: As discussed earlier, OPA's incentives to avoid
environmental injuries are dependent upon knowing what the potential
liability from discharges is likely to be. Without the availability of
CV as an assessment tool, that full potential liability cannot be
estimated.
Comment: A number of commenters discussed passive use values--some
questioning the inclusion of such values by suggesting that they are
poorly defined while others felt that such valuation has no relevance
because the environment is priceless. Other commenters supported
inclusion of passive use values.
Response: NOAA notes that there is a general consensus in the
economic community that passive use values exist; there is no basis in
economic theory to suggest otherwise.
Comment: One commenter noted a continuing debate over defining
passive use values. The commenter suggested that any judgment on the
definition of passive use values in the rule is premature. Rather, the
rule should allow analysts to make use of emerging, state-of-the-art
theories and techniques for defining and measuring passive use values.
Response: NOAA believes that passive use values are well-defined
and are an appropriate component within a damage assessment
determination of compensable values. To facilitate consistent usage,
NOAA defines passive use values in the definition section of subpart A
of the proposed rule. As stated in the preamble, the proposed rule
allows the trustee(s) broad discretion in the selection of valuation
methods specifically to allow for the use of new methods of valuation
as they become recognized and accepted in the economics profession.
Comment: A number of commenters contended that the relevant law,
the Ohio decision, and the precedents do not require that passive use
value damages be calculated by CV or any other methodology and that
nothing in OPA mandates use of CV to impose liability for potential
impairment of passive use values.
Response: NOAA believes that the Ohio decision should be considered
in this rulemaking because the natural resource provisions of OPA are
patterned after those of CERCLA. In that decision, the circuit court
upheld CV as an allowable method for calculating passive use damages.
The trustee(s) has the discretion to use CV where appropriate.
Comment: One commenter stated that if NOAA does not recognize the
practical limits on the ability of the marine industry to insure
against speculative losses, the result will be awards that the industry
cannot afford to pay. Similarly, other commenters noted that the
financial resources of the insurance market and individual shipowners
should govern the size of recoverable claims under OPA.
Response: NOAA disagrees. In the statutory language of OPA, the
Congress of the United States established a standard of strict
liability and the objective of full compensation for all attributable
loss. NOAA does not have discretion to change these requirements and
substitute others.
Further, NOAA believes that economic theory supports a
comprehensive definition of the social cost of a discharge when
identifying cost elements to be included in an assessment.
Alternatively, if damage claims systematically understate the size of
compensable losses resulting from discharges of oil, society will
underinvest in preventing damages from future discharges.
Comment: Numerous commenters indicated that damages under OPA
should be compensable, not punitive.
Response: NOAA concurs that natural resource damages under OPA are
compensatory rather than punitive.
Comment: One commenter stated that the existence of substitute
sites in an evaluation of lost resources becomes irrelevant if the
damage was caused by negligence.
Response: NOAA believes that there is no theoretical reason to
separate the estimation of damages caused by negligence from those
which were not. (The discussion of how to treat substitutability among
resources appears below.)
Comment: Several commenters suggested that a trustee(s) should be
required to select the ``minimum social cost'' restoration alternative,
including natural recovery, when selecting a restoration approach.
Response: NOAA disagrees that this will be true for all cases.
These commenters are essentially recommending that NOAA adopt the
``lesser-of'' rule contained in the natural resource damage assessment
regulations promulgated by DOI, and rejected by the court in Ohio v.
DOI. This rule specified, in essence, that the trustee(s) should choose
to do restoration projects only if restoration costs were less than the
interim lost value avoided by the restoration project. Consequently,
cost-effectiveness and benefit/cost comparisons are factors in
restoration alternatives analysis, as outlined in subpart G of the
draft regulations and in the Restoration Guidance Document, but are not
the sole factors to be applied in choosing among competing restoration
alternatives.
Comment: A few commenters suggested that the value of the claim
should be the cost of the most cost-effective restoration alternative.
Response: NOAA disagrees. Section 1006 of the OPA Conference Report
(H. Conf. Rep. No. 653, 101st Cong., 2d Sess. at 108 (Aug. 1, 1990))
provides a clear mandate to NOAA to ``establish a system for assessing
damages to natural resources, including a measure of damages equal to
the costs of restoration, replacement or acquisition of equivalent
resources, and the diminution in value of those resources pending
restoration'' (emphasis added). Moreover, the appropriate restoration
approach to include in a damage claim may not be the one that is most
cost-effective because the trustee(s) must consider a number of factors
when selecting restoration options. It is important to note that cost-
effectiveness only allows ranking of alternatives that accomplish the
same increase in services at the same rate over time. Other criteria
are necessary to compare alternatives that accomplish different
outcomes.
Comment: Some commenters indicated that actions taken by the RP(s)
in connection with a discharge may be beneficial to the environment
and/or the local economy and thus should be considered as an offset to
damages resulting from the discharge. For example, one commenter argued
that passive use and/or nonmarket losses should not enter into damage
assessments because for every category of persons suffering a loss as a
result of a natural resource injury, there will be other individuals
who gain. Other commenters said that such ``offsetting'' is not
authorized by OPA and that the trustee(s) must not consider any such
actions.
Response: NOAA agrees that offsetting public damages against
private gains is not authorized by OPA. The scope of a natural resource
damage assessment is limited to the losses to the public due to injury
to public trust natural resources--losses that are not actionable under
private actions. To the extent that some actions taken by the RP(s) may
mitigate the injuries to the environment and speed restoration of the
resources, the impacts will be lessened, as will the damages;
consequently the size of the damage claim will be smaller than it would
have been if the RP(s) had not taken the mitigative actions.
However, damage claims brought by public trustees do not include
the positive or negative effects on private parties, such as reduced
income accruing to local recreation-related businesses due to declining
tourism or increased income to spill response firms. Further, to the
extent that such expenditures are simply shifted from one location to
another, the gain of businesses in one location is the loss of
businesses in another and the net effect on the private parties
throughout the whole country is essentially zero.
Comment: Several commenters were concerned about ``double
counting'' or ``double recovery'' within the damage assessment process.
Each observed that OPA does not allow double recovery of damages, and
proposed that the NOAA rules explicitly disallow such claims.
Response: NOAA agrees that no double recovery is permitted under
OPA.
Comment: One commenter raised the issue of ``rents'' within the
compensable claim. One commenter recommended that the regulations state
that the trustee(s) cannot collect forgone resource rents accruing to a
private party(ies), even if that rent is generated from the private
party's use of public resources.
Response: NOAA does not concur. In the event of a discharge covered
under OPA, the trustee(s) is entitled to recover from the RP(s) the
total diminution in value of lost or diminished services from affected
public trust resources that is not recoverable by a private party. One
part of the diminution in value of affected resources is the resulting
reduction in economic rent, which represents the fee or price the
trustee(s) could charge for use of the public trust resource. The loss
in value created by the public resource occurs whether or not the rent
was collected from the private parties before the discharge. Unless
such rents are recovered under a private action, the trustee(s) is
entitled to recover them.
Comment: A number of commenters suggested the OPA rules should
exclude recovery of damages for injury to privately owned natural
resources, or that recovery should be limited to those natural
resources in which the government has a dominant interest.
Response: NOAA agrees that recoveries for injuries to private
resources shall not be included in any estimate of the public damage
claim under OPA, and shall be accomplished through private causes of
action. NOAA recognizes, however, that trust resources (e.g., birds)
can use private resources (e.g. land). To the extent that an injury to
a privately-owned natural resource causes injury to a trust resource,
the trustee(s) can recover for the injuries to the trust resource.
Comment: One commenter noted that aesthetic injury should be
considered in addition to physical impacts. The long-term assessment
should account for impacts, too.
Response: NOAA believes that, if the aesthetic injury affects the
physical experience of users or affects passive use values, then by
definition this is a compensable loss.
``Valuation Methodologies''
Comment: Several commenters reflected the position that, because
each discharge and the injury it causes are unique, no single procedure
or standard economic equation could or should apply to all situations.
One of these commenters recommended that an analyst should have the
flexibility to examine each valuation problem on a case-by-case basis,
and determine which type of valuation technique is likely to generate
the most valid and useful results.
Response: NOAA agrees that flexibility in the determination of
assessment procedures is important. NOAA is therefore providing four
alternative assessment procedures from which the trustee(s) may choose.
In addition, parallel assessments, in which the valuation of damages
for one incident employs different assessment procedures, are permitted
under OPA provided there is no double recovery of damages. One example
of parallel assessments would be supplementing Type A model
calculations with expedited damage assessment calculations for service
losses that are excluded or not fully estimated in the Type A model. In
addition, within the comprehensive damage assessment procedures,
allowable calculation procedures range from benefits transfer
procedures to original studies conducted with site-specific data.
Comment: Some commenters expressed the opinion that monetary
measures of value, in particular for natural resources and related
services, must be empirically ``stable'' in order to be characterized
as ``well formed'' value preferences. Others argued that no such
``stability'' criterion is required for such values to be theoretically
consistent with consumer theory.
Response: NOAA notes that monetary measures of economic values for
all goods and services, including natural resources and services from
natural resources, are derived in theory from consumer preference
orderings. From an individual's complete preference ordering, one can
derive the trade-offs individuals are willing to make between
alternative bundles of goods and services, holding all else constant.
It is also possible to determine monetary measures of value. Where
consumer preference orderings are stable, but an individual's
circumstances change because the price, quality or availability of
other goods changes, then the individual's monetary measures of value
are expected to adjust as well.
Comment: One commenter noted that since Congress intended that full
compensation for natural resource damages be awarded, NOAA's
regulations should not limit available economic valuation methodologies
and should allow the trustee(s) broad discretion in choosing between
currently available standard methodologies and new methodologies that
may become available and accepted. The commenter stated that, while
minimum standards of quality might be useful, regulations should not
``lock in'' the current state-of-the-art as improvements in nonmarket
valuation techniques continue to occur at a rapid pace.
Response: NOAA stresses that the trustee(s) should use all
applicable, reliable economic value measurement techniques in order to
adequately assess all compensable values to be incorporated in the
damage claim. As stated earlier, NOAA is determined to take no action
that would arbitrarily preclude the use of new methodologies, as they
become recognized and accepted in the economics profession.
Comment: Other commenters warned that exclusion of nonmarket
techniques may result in undervaluing the effect of oil pollution on a
wide range of goods and services such as real estate values,
recreational use and wildlife viewing. They argued that ignoring such
values leads to distorted and incomplete damage assessments.
Response: NOAA concurs with the suggestion that the trustee(s)
should have broad discretion in selecting the methodologies that will
be employed in performing the damage assessment, because each discharge
will be unique in some respects. The nonmarket valuation techniques,
including Contingent Valuation (CV), Travel Cost Method (TCM) and
Hedonic Price Model (HPM), would appropriately be among the range of
methodological options available to the trustee(s). Each of the
identified methodological approaches values injuries to different
resource services. As a result, for the most part the methods are not
substitutes for one another; the choice of which to use depends upon
the injuries to be valued in the given application.
Comment: A few commenters argued that all nonmarket valuation
techniques are inherently less reliable than market-based approaches.
Other commenters supported CV, as well as TCM, and HPM. Many of the
economic methodologies for estimating the diminution in value of
resource services are nonmarket methodologies that do not have a long
history of experience to indicate when and how they can be applied to
produce reliable estimates in individual cases. They noted these
valuation techniques have been shown to produce reliable estimates of
WTP, when ``appropriately'' applied. Another commenter noted empirical
market-based valuation techniques are subject to many of the same
potential problems as nonmarket-based valuation techniques, such as
conceptual difficulties, data limitations, and accuracy of statistical
estimation techniques.
Response: NOAA does not support the conclusion that all nonmarket
valuation techniques are inherently less reliable than market-based
approaches. In fact, it is widely recognized that market-based
valuation techniques are potentially subject to many of the same
criticisms and weaknesses attributed to nonmarket techniques. In
addition, it is not possible to use market valuation techniques for
natural resource services that are not traded in markets.
NOAA observes that CV, TCM, and HPM techniques have each been
successfully employed in a wide range of nonmarket valuation
applications, and have undergone extensive scrutiny. NOAA finds no
justification for arbitrarily ranking, nor unilaterally precluding the
use of, any valuation methodology that is regarded by the trustee(s) as
useful and appropriate to the specific injuries of a given discharge of
oil. The specific characteristics of the discharge event and the nature
of the injuries to be valued should guide the choice of valuation
method.
Comment: One commenter recommended that NOAA establish criteria or
guidelines to ensure that estimates of the diminution in use value of
injured resources are valid and reliable. Further, NOAA should provide
criteria and guidance to the trustee(s) regarding the selection and use
of such methodologies to ensure that the value estimates are valid,
reliable, and accurate.
Response: NOAA, in the proposed rule, has stated that the
trustee(s) should follow the best practices established in the
literature. This recommendation is generally the best guidance NOAA
could provide. However, where new information has been made available
to NOAA as part of the rulemaking, that guidance has been provided,
e.g., guidance concerning CV.
Comment: Two commenters questioned the validity of the hedonic
price model (HPM) in discharge cases because ``the environmental value
of a site is difficult to isolate in comparison studies'' due to the
innumerable other variables that affect property values.
Another commenter noted that impacts are typically of short
duration and unlikely to cause any measurable change in property
values. Further, where property value changes are observed and are
solely caused by a discharge of oil, they would represent otherwise
compensable private losses, not natural resource damages. The commenter
argues that any such private losses would be poor indicators of a
public loss.
Response: NOAA agrees that the type of injuries HPM is designed to
value may not be significant in most discharges. Most discharges will
have only small effects on housing prices. Even where there are
effects, it may be difficult to estimate them using standard
econometric methods because so many factors influence housing prices,
and many are correlated
FR Doc. 94-225 Natural Resource Damage Assessments
. However, the HPM technique is reasonably
straightforward to apply and may be useful in certain situations.
Therefore, NOAA supports the inclusion of the HPM in the list of
available value measurement techniques.
One of these commenters misinterpreted the use of HPM in damage
assessments. The technique is not used to estimate the private property
loss to consumers; rather, the method takes into account the fact that
the quality of local environmental resources (e.g., water, air,
biological resources) is a factor in the value of property. Further,
because local environmental quality is part of any purchase of private
property, environmental quality is considered an attribute of the
property. As a result, the value of the environmental quality is
reflected in property values. Hedonic valuation analysis uses the
reduction in property prices of local residents as a measure of a
portion of the reduced value of public resources due to the discharge.
Comment: Another commenter argues that HPM is based upon
questionable assumptions, such as the ideas that households continually
reevaluate their location decisions, that decisions are based upon
current environmental quality, and that a family can easily move its
entire household in response to nearby natural resource damage.
Response: The HPM is predicated on the assumption that the
preferences for nonmarket goods and services can be revealed through
directly observable transactions in related markets. To the extent that
the housing transaction costs are high, individuals may not respond to
marginal changes in attributes of housing. As a result, the method is
likely to understate the sensitivity of individual's values to the
attributes.
Comment: One commenter strongly recommends that hedonic property
damages can be determined by following normal tort (e.g., trespass)
type damage procedures.
Response: Given the range in approaches by various jurisdictions to
property and natural resource damages, it is difficult to determine
what is meant by ``normal'' tort procedures. NOAA believes that its
approach is consistent with that envisioned by OPA.
Comment: One commenter was concerned that an earlier Notice
suggests that single-site travel cost models do not account for
substitute sites, but multiple-site models do.
Response: NOAA did not mean to imply that single-site travel cost
models are incapable of treating substitutes. In practice, however, the
collinearity among travel cost (price) and environmental attributes of
the set of substitute sites substantially limits the number of
substitutes that can be incorporated in a single equation model.
Comment: One commenter stated that the rules should emphasize that
the travel cost model, for the purpose of measuring lost use value, is
only a technique for estimating interim lost value to supplement
restoration/replacement value during the time period after the
discharge and before restoration. The commenter noted that because
restoration efforts in most cases will gradually reduce the natural
resource injury from its peak within a short time after the discharge,
TCM damage estimates should be adjusted for the improvement factor, and
should be phased out entirely when restoration is complete.
Response: NOAA concurs that, as an injured resource (say a
recreational fishery) recovers through time, the quality of the
services will generally increase. As the quality of the recreational
fishery improves toward baseline, the value per fishing trip will tend
to increase and as a consequence, so will the demand for fishing. For
versions of the TCM in which recreational demand is a function of both
the travel cost and the environmental quality of the site (such as
catch rate), the model may be used to predict these changes in value
and participation so long as data on expected environmental quality
improvements (such as the increase in catch rate) during the recovery
period are available. When the relationship between quality and
participation is not explicitly modeled, and the TCM only predicts
total participation at the site, adjustments in the damage calculations
will be necessary as participation returns to baseline. NOAA concurs
that the interim lost values are calculated from the time of the
discharge until restoration is deemed complete by the trustee(s).
Comment: Two commenters noted problems with TCM. One said TCM
provides estimates of the value of a site as a whole and does not
measure the impact of relatively slight changes in the availability of
natural resources. Another indicated visitors may lack information or
have a misconception about a particular site, which will skew the
resulting data. Another noted it is also very difficult and ultimately
ambiguous to attempt to measure lost opportunity costs, which depend on
each individual's wage rate as well as his/her ability and inclination
to work during travel time. Also, the commenter notes there is an
unsettled controversy over whether individual data on travel cost are
better than zonal aggregation of travel costs.
Response: NOAA recognizes the limitations in applicability of the
TCM. The greatest disadvantage of the TCM, and other indirect
techniques as well, is that it cannot be employed unless there is some
easily observable behavior that can be used to reveal values. Advances
in the TCM incorporating multiple-site visits, improved models of the
value of time, and the availability of substitutes continue to broaden
the range of this measurement technique. In addition, the economics
profession has developed procedures for valuing changes in
environmental quality of a site, in addition to valuing access to a
particular site. Random utility models, a multi-site extension of TCM,
can value changes in quality at sites without requiring observed
participation levels. This feature is useful, because for sites in
which recovery is expected to occur over a long period, it will not be
feasible to collect site-specific data through the full period of
recovery within the time frame of the damage assessment.
In prevailing economic theory and practice, it is assumed that
individuals' behavioral responses are derived from their personal
perceptions of reality. These behavioral responses provide the basis
for valuation. Therefore, if a discharge of oil produces an injury to a
site, it is not necessary that a user know with scientific certainty
what the specific extent of the injury has been. If the consumer
perceives that the value of the site has been diminished as a result of
the discharge, there has been a reduction in utility, and thus a
potentially compensable loss. If additional information eventually
reduces the perception and experience of loss, then the damages will be
reduced accordingly. However, past losses derived from uncertainty
regarding consequences of a discharge may still be a compensable loss.
To the extent that individuals are unaware of injuries to resources,
their responses may understate the values they might express with full
information. Since these individuals will most likely eventually
experience the service losses (though they be unaware of the cause),
these future losses should be estimated and included as compensable
values.
Comment: Two commenters stated TCM will be superior to HPM in most
cases.
Response: NOAA contends that both the TCM and HPM have their
advantages and disadvantages, and are suited to different
circumstances. NOAA finds that both models should be considered for
potential use in damage assessment.
``Contingent Valuation Methodology''
``General''
Comment: Several commenters stated that compensatory natural
resource damage assessment is all that is included in OPA. They claimed
that CV as currently applied has such an upward bias as to be punitive.
Response: Under OPA, the compensatory framework includes
calculations of both direct use and passive use values. NOAA has found
no empirical evidence to support the contention that CV measures of
passive use values are so upwardly biased as to be punitive.
Comment: A number of commenters contended that authorizing the
application of unreliable methodologies such as CV for measuring
speculative elements of loss, such as theoretical passive use damages,
even under limited circumstances, will result in increased litigation
costs because the RP(s) will be more likely to go to trial on the
grounds that CV will significantly overstate passive use damages.
Response: The use of CV, in and of itself, does not promote
litigation. The potential for litigation depends upon the nature and
quality of the damage assessment and the litigious nature of the
trustee(s) and RP(s). A CV study that is carefully constructed,
administered, and analyzed should not meet with the skepticism that
many past CV estimates have received.
Comment: One commenter stated that the use of CV is inconsistent
with the general law of damages. That commenter contended that a
decision to employ CV measures of passive use losses would invite wider
use of CV, with potentially serious repercussions for the legal system
and could lead to speculative claims like a claim for harm due to the
death of a friend.
Commenters further compared traditional tort law and the natural
resource damages under OPA. These commenters noted that imposing
liability for natural resource damages based upon CV studies for
passive use values does not further the public's interest in preserving
and restoring publicly owned natural resources. Additionally, these
commenters stated that liability under OPA is limited to the costs to
restore or replace injured resources, and that any passive use values
assessed above those costs are punitive damages. These commenters also
noted that even if OPA authorized such damages, tort law actions
generally do not allow damages for losses that cannot be determined
with sufficient evidentiary reliability and economy.
In contrast, other commenters stated that recovery for passive use
values is not punitive since OPA specifically recognizes two components
of the damage figure--costs to restore, replace, rehabilitate, or
acquire the equivalent of the injured resources and diminution in value
pending that restoration. Failure to include passive use values in a
natural resource damage claim under OPA would, in fact, be a violation
of law. Also, these commenters noted that there is no requirement in
private tort law that the damages must be proven with mathematical
precision and that difficulty in determining damages is not a bar to
their recovery.
Response: Although NOAA observes that certain claims, such as those
for emotional distress, etc., are recognized by the American judicial
system, it also points out that it is not the role of this rulemaking
to speculate whether CV will gain acceptance in areas of the law other
than that dealing with natural resource injuries. Because OPA
explicitly includes diminution in value as part of the damage claim for
natural resource injuries, damages under OPA are not limited to the
costs to restore, rehabilitate, replace, or acquire the equivalent. As
stated elsewhere in this proposed rule, the OPA compensatory framework
includes both direct use and passive use values. Thus, the inclusion of
passive use values in a damage claim cannot be considered punitive.
Rather determination of passive use values furthers the public interest
by ensuring adequate compensation to restore, rehabilitate, replace, or
acquire the equivalent of the injured resources.
As indicated in this rule, CV is a valid, proven technique when
properly structured and professionally applied, and as such is an
acceptable method for use by natural resource trustees. Further, use of
CV to measure passive use values has been sanctioned in the Ohio
decision. As stated earlier, NOAA believes that CV studies of passive
use values can produce reliable estimates of damages. In cases where
passive use values cannot be estimated at reasonable costs, they may be
omitted from the damage claim.
Comment: One commenter stated that assessment of damages for
impacts on existence or option values is inappropriate because no
restoration effort will serve to avoid this claimed impact. Therefore,
it is an irremediable element of the event and constitutes a penalty.
Response: NOAA does not agree that impacts to existence or option
values are an irremediable element of a discharge of oil unless
restoration, replacement, or rehabilitation of the injured resources
(and thus services) is impossible. Liability is for foregone direct use
and passive use values during the interval from the discharge to
complete recovery. Should recovery be impossible, these losses are, by
definition, irremediable. Such losses are, nonetheless, compensable
under OPA and do not constitute a penalty. Recovery for such losses can
be used to acquire the equivalent of the injured resources.
Comment: One commenter recommended that the federal government
produce standard damage assessments for a few specific reference
discharges of oil, either hypothetical or actual, ranging from small to
large. These standard valuations could be generated by any method,
including through a jury of experts. These benchmarks could serve as
reference points for later CV studies. That is, when a damage
assessment is required, surveys could be used to elicit answers to
questions like: ``Would you pay [much more, more, about the same, less,
much less] to prevent this spill than you would to prevent Standard
Spill A?''
A few commenters suggested as an alternative to using CV to
estimate interim lost values, that NOAA consider establishing a range
of pre-set monetary values that reflect lost passive use values. For
any specific discharge or incident, NOAA could establish a methodology
for applying these values to calculate the precise amount of payment
due to compensate the public for lost passive use values. The values
and methodology should be established by an expert panel.
Response: NOAA will consider the feasibility and desirability of
establishing reference studies. NOAA is proposing a compensation
formula with values for relatively small discharges. Though the current
version of the formula does not include passive use values, the
intention is to include passive use values when reliable estimates are
available for such discharges.
Comment: A number of commenters asserted that use of CV will reduce
the credibility of the entire trustee framework and result in
undesirable social consequences.
Response: NOAA believes the use of CV will not reduce the
credibility of the damage assessment process if it is done correctly,
with consideration of the guidance and guidelines set forth in the
proposed rule. In addition, use of CV should produce some socially
desirable consequences by enabling the trustee(s) to determine total
compensable value and ensure that there is adequate compensation to
restore the injured natural resources.
Comment: One commenter noted that any damage assessment rule
authorizing CV to measure passive use damages could well cost the U.S.
economy hundreds of millions of dollars annually by generating
excessively high estimates of passive use damages. This could result in
reduction of the number of competitors in the transportation industry,
including bankruptcy of some responsible parties. Industry
concentration could follow which, in turn, could lead to higher freight
rates and unnecessary costs borne by U.S. oil consumers. Under E.O.
12291 (now E.O. 12866), a rule imposing such costs cannot be
promulgated prior to completion of a regulatory impact analysis.
Response: NOAA has considered the possible impacts of the proposed
rule. The proposed rule has been designated as a ``major'' rule because
of the significant issues involved in the rulemaking. However, because
of the difficulty of evaluating the effects of alternatives to this
proposal, a Regulatory Impact Analysis under E.O. 12866 is not
necessary and has been waived.
``Reliability''
Comment: A great deal of controversy surrounds the use of CV to
estimate passive use values. Critics state that, as an approach to
assessing these values, CV is: (1) Deeply and irretrievably flawed; (2)
highly unreliable as a measurement tool for passive use values; and (3)
unable to meet basic standards of accuracy such as tests of theoretical
validity and convergent validity. These critics pointed out that
studies frequently cited as providing support for the reliability of CV
have never been replicated and do not provide clear scientific evidence
in support of CV.
Another commenter stated that the empirical literature on CV
estimates of passive use values is too thin at this time to establish
or dismiss the credibility of reported estimates, while another
suggested that no perfect instrument exists for measuring peoples'
values for any commodity--marketed or nonmarketed--and that we will
never know the exact nature of peoples' true value functions for any
commodity.
Proponents stated that CV is the only viable means to meet OPA's
mandate that both direct use and passive use values be considered in
assessing natural resource damages. Thus, passive use values measured
by CV need to be sanctioned. These individuals argued that the fact
that it is difficult to quantify passive use values using CV does not
justify ignoring such values. Further, CV should not be held to a
higher standard of reliability than other types of analysis.
Response: NOAA includes CV as one of the measurement techniques
available to the trustee(s) for the determination of the diminution in
value of natural resources and/or their services as a result of a
discharge. NOAA believes that CV studies can produce reliable estimates
of damages. Further, NOAA agrees that CV should be held to the same,
not a greater, standard of reliability as other types of analysis.
Comment: Several commenters argued that the use of CV to measure
passive use values cannot be tested or validated by comparison to
valuations derived by other methods. Thus, there is no standard against
which CV answers can be compared to detect bias. Since no valid
alternative method currently exists for assessing ``true'' passive use
values, it is impossible to judge the extent of any overestimation
produced by CV surveys. Several commenters acknowledged that there have
been some attempts to investigate criterion validity, which provide
some suggestive evidence establishing the validity of estimated passive
use values.
Response: NOAA agrees that it is difficult to validate externally
the results of CV studies measuring passive use values as there are no
other methods currently available to provide external validation with
an alternative estimate. This same disadvantage, however, will exist
for any method used to estimate passive use values. To minimize any
potential bias, CV studies should consider the guidance provided
elsewhere in this proposed rule concerning survey design, development
and administration. Furthermore, this rule proposes a test for
determining the validity of the results.
``Survey Design Issues''
``Injured Substitute Commodities, Budget Constraints, and Alternative
Expenditure Possibilities''
Comment: Several commenters expressed the view that CV-based
estimates of willingness to pay would be overstated if respondents: (1)
Were unaware of the availability of substitute natural resources that
were not injured by the discharge under investigation, (2) were not
cognizant of their existing financial claims (i.e., their budget
constraint), or (3) were unaware that they may be asked to pay for
future public programs. These commenters suggested that respondents be
reminded of uninjured substitute natural resources, budget constraints,
and future expenditure possibilities prior to the CV willingness to pay
elicitation question.
Response: NOAA agrees that it is important to inform respondents of
related natural resources that have not been injured by a discharge if
such resources exist and to remind respondents prior to the elicitation
question that there may be things they would wish to spend their money
on other than the program offered in the survey. However, NOAA does not
agree that respondents should be told about speculative future programs
that might be proposed as people are not reminded of future potential
expenditures when they purchase a marketed good or make decisions
concerning expenditures for public commodities. For example, voters are
not reminded of issues that may appear on future ballots at the time
they cast their votes in actual referenda. Further, if the trustee(s)
selects the conservative lump-sum payment vehicle recommended by NOAA
in the preamble to this proposed rule, this design component will
greatly reduce the respondents' need to consider the future financial
implications of their willingness-to-pay decisions.
``Sensitivity to the Scope of Injuries''
Comment: Many commenters expressed concern that estimates of
willingness to pay (WTP) for the services of natural resources obtained
through CV studies are not sufficiently sensitive to the magnitude of
the services being offered, and therefore, those results are
inconsistent with accepted economic theory and must be deemed
unreliable estimates of lost passive use value.
Response: NOAA is sympathetic to this concern; however, NOAA is not
convinced that phenomena such as insensitivity to scope are endemic to
the CV approach. The concern of the commenters can be illustrated with
a simple example. Consider two samples of respondents, identical in all
respects. The first sample is confronted with a CV survey that elicits
a WTP for a well-defined natural resource service. The second sample is
confronted with the identical survey, with the exception that the
quantity of the natural resource service offered is significantly
larger than that in the first survey. If environmental services enter
individuals' utility functions in a manner analogous to common consumer
goods (e.g., household electronics, clothing etc.), one might expect
WTP from the second sample to be larger than that from the first,
although relevant economic theory states only that the WTP of the
second sample should not be smaller than that of the first.
``Substitutes''
Comment: A number of commenters contended that CV responses for
generic sites indicate that survey respondents have not considered
substitute sites sufficiently because their responses are too close to
the responses for irreplaceable sites. Lacking clear preferences,
individuals are unlikely to recognize substitutes for the service in
question, unless a description of these substitutes is specifically
included in the survey instrument.
Response: Reminding respondents of undamaged substitutes has been
outlined in the literature as a good CV practice. In order to obtain
reliable estimates of WTP, NOAA recommends that the survey instrument
places the commodity to be valued in the context of related natural
resources, if such related resources exist or describes the future
state of the same natural resources. This reminder should be introduced
prior to the main valuation question to ensure that respondents have
the alternatives in mind when revealing their willingness-to-pay.
``Hypothetical Questions''
Comment: One commenter claimed that CV surveys cannot provide
reliable estimates of lost passive use since such surveys ask
respondents about hypothetical programs to provide public goods and
that respondents view the survey as a purely hypothetical exercise.
Under these conditions the commenter claimed that the respondent
undertakes no mental effort to answer the questions since there is no
cost to being wrong.
Response: NOAA acknowledges that poorly designed and administered
CV surveys may be subject to the criticism that individuals do not take
the decisions posed by the survey seriously and do not undertake the
effort necessary to make decisions consistent with their preferences
and financial constraints. However, NOAA rejects this comment when
applied to all CV surveys. CV surveys designed and conducted according
to the guidance laid out in this proposed rule will lead to careful
decisionmaking on the part of respondents. This is ensured by the
proposed regulations which require: (1) An accurate and understandable
injury description; (2) credible prevention or restoration programs
that are offered to the respondent; (3) a realistic choice mechanism
and payment vehicle and (4) followup questions that ask respondents to
explain aspects of their decisions. Further, NOAA believes that its
recommendation to use in person interviews will motivate respondents to
complete the interview and will maintain the respondents' interest in
the subject matter of the survey.
``Referendum''
Comment: Several commenters recommended the use of a referendum
format to pose the valuation question. Critics, however, contended that
the use of the currently popular dichotomous-choice payment question
format can lead to even less credible results than those using open-
ended formats. They argued that studies show means from dichotomous-
choice data to be significantly larger than the means from the open-
ended data and that results of dichotomous-choice models suffer from
starting-point bias.
Response: NOAA believes that the more appropriate method of
questioning for the estimation of reliable estimates of WTP is the
dichotomous-choice or referendum format. Open-ended CV questions are
less likely to provide the most reliable valuations because they lack
realism. In our society, most goods are offered using posted prices.
Asking an individual to reveal his or her maximum WTP for a good is
both unfamiliar and unrealistic. On the other hand, a voting format for
public goods is one with which people are familiar (i.e., school bond
issues; special assessments for public infrastructure). Further, an
open-ended request for WTP may invite strategic overstatement or
failure to respond to the valuation question.
``Strategic Behavior''
Comment: One commenter claimed that respondents confronted with CV
questions regarding public environmental programs will attempt to
increase the amount of money spent on the proposed project by
increasing their expressed willingness-to-pay beyond the level
consistent with their preferences.
Response: Strategic behavior is less likely to occur if the
trustee(s) uses the voting format recommended by NOAA. If this approach
is used, the survey will specify that some public entity, such as a
state or federal government, is considering a plan that would provide a
public good and is conducting a survey to see how individuals would
vote on this plan if it were offered on a ballot and the cost to the
respondent's household was $X. The referendum format does not permit
the respondent to express an amount greater than that asked nor does it
suggest that the level of the public good offered is being debated,
thus the respondent cannot increase the amount of the public good
provided by offering to pay a greater amount. Moreover, it has been
shown that the referendum format is incentive compatible, implying that
respondents' only incentive is to vote for the plan if his or her WTP
equals or exceeds the required payment, or to vote no if his or her WTP
is less than the required payment.
``Warm Glow''
Comment: Several comments suggested that expressed willingness-to-
pay for the programs offered in CV surveys are not expressions of value
for the services provided by the natural resources described in the
programs, but rather are expressions of the simple pleasure one
receives from giving to any good cause (sometimes referred to as the
warm glow of giving).
Response: NOAA finds no evidence to suggest that the warm glow
motivation is prevalent in properly designed and administered CV
surveys that follow the guidance outlined in the proposed rule. If warm
glow were a prevalent motivation, one would not expect to find large
numbers of respondents refusing to pay anything at all for
environmental programs offered in a CV survey.
A very common and effective payment vehicle employed in CV studies
is a lump-sum tax payment. NOAA finds no evidence to support the notion
that the warm glow hypothesis would imply that individuals get a
similar warm glow from taxing themselves. Certainly, casual evidence
suggests the opposite is true. Since a tax vehicle is one of the
preferred methods of payment in CV surveys, NOAA believes that
responses to such surveys are not amenable to explanation via the warm
glow hypothesis.
``Sensitivity of Results to Various Factors''
Comment: Several commenters voiced concern that in the absence of
clear preferences, respondents are subject to even unintentional
influence by the framing of the survey instrument. These commenters
stated that WTP values derived from CV are highly sensitive to
variables that, according to economic theory, should be irrelevant to
the valuation of a specific resource, including elicitation format, the
sequence of questions, and the starting point value given in the
questionnaire. Conversely, they assert that CV results are quite
insensitive to changes that, according to economic theory, should
matter, including variation in the quantity or quality of the resource.
This evidence further demonstrates that CV results do not reflect valid
economic measures of value.
Response: NOAA is not persuaded that CV results do not represent
valid measures of lost value. NOAA recommends that CV surveys be
designed to provide the highest degree of realism possible. Additional
guidance is discussed in this preamble in the responses to comments on
embedding, income constraints, and uninjured substitutes. In addition,
NOAA proposes a test in its proposed regulations to demonstrate
sensitivity to the scope of the environmental insult.
``Present Value Calculation of Interim Losses''
Comment: One commenter noted the distinction between interim and
steady state passive use losses and claimed that respondents to a CV
survey are unlikely to be able to discount appropriately the specific
time path of interim losses. The commenter then presented an
alternative procedure whereby respondents would value interim losses
for a single year and technical experts would estimate how the services
provided by the resource will vary from year to year as the restoration
takes place. These experts would scale the respondents' valuation by
the amount of the recovery that has taken place each year and compute
the appropriate present value.
Response: There is no evidence to suggest that respondents'
expressions of willingness to pay embody inappropriate discounting.
Moreover, the alternative approach advocated in the comment is not only
inconsistent with economic theory, but, at an implementation level,
infuses the valuation with unnecessary economic and ecological
uncertainty. Rates of time preference for the restoration of natural
resources are specific to each individual. CV valuation of natural
resource injuries is consistent with this fact and permits individuals
to discount at their own rates. The alternative proposed by the comment
would abandon individual-specific time preference rates, for a single
rate chosen by some expert. This would clearly lead to discounting
errors and is therefore an unacceptable approach. At the implementation
stage, the alternative would require experts to estimate the actual
time path of recovery and levels of recovery for each of the natural
resources injured, and then to form a suitable index of the recovery
that could be used to scale the respondents' willingness to pay
amounts. Even if the experts could quantify the specific time path of
recovery for each of the resources, they could not form the appropriate
aggregate since this would rely on information about each respondent's
preferences. Therefore, NOAA finds the proposed alternative
unacceptable.
``Temporal Averaging''
Comment: One commenter stated that time dependent measurement noise
should be reduced by averaging across independently drawn samples taken
at different points in time. The commenter also suggested that a clear
and substantial time trend in responses would cast doubt on the
reliability of the finding.
Response: NOAA disagrees with this comment. Expressed willingness
to pay can vary over time for valid economic reasons (e.g., increase
certainty concerning expected recovery) and simple time averaging would
mask these economic reasons. Moreover, even if such averaging were
appropriate and warranted, it would require the trustee(s) to field
several full-scale surveys that would greatly increase damage
assessment costs and, at best, add nothing to the reliability of the CV
results.
``Unfamiliarity With the Good''
Comment: A great deal of concern was voiced over the complexity of
the policy issue and/or the level of familiarity of the good
(environmental amenity) and changes in the level of the good with which
the CV respondent is faced. Moreover, the benefits from environmental
projects can be complicated, cumulative, and systemic, and knowledge
about these things cannot be quickly absorbed and used by average
survey respondents. As a result, the respondent has no experience or
basis for valuing the good, leading them to construct values that are
not related to the good itself. On the other hand, a number of
commenters criticized the empirical research used to support claims of
the unreliability of CV, due to the ambiguity of the valuation
scenarios used in this research.
Response: If CV surveys are to elicit useful information about WTP,
respondents must understand what it is they are being asked to value
and must accept the scenario in formulating their responses. NOAA
recognizes that some past CV surveys have provided only sketchy details
about the program(s) being valued, calling into question the estimates
derived from those surveys. NOAA posits that a conservative approach
should be taken regarding the knowledge of the respondent. A
conservative CV study will provide sufficient information about the
environmental program such as frequency and magnitude of discharges of
oil, the peculiar features of the discharge in question, and similar
relevant information.
``Embedding''
Comment: A number of commenters highlighted a form of embedding
which is sometimes related to the inclusiveness of the resource. This
form of embedding is suggested by the very different responses given by
an individual when asked about a single resource as compared to surveys
when the individual is asked to begin with an overall sum for
environmental causes and is asked to then allocate this amount among
various resources. The difference between a ``bottom up'' approach and
a ``top down'' approach indicates that an individual is not observing
his budget constraint in the bottom up approach. Because the respondent
is unable to distinguish between what he is being asked to value and a
more inclusive good, he may state an identical or similar WTP for a
subset of a resource as for the entire resource.
Other commenters suggested that some of the phenomena associated
with the embedding effect are simply standard propositions in utility
theory (diminishing marginal utility of the asset in question).
Further, a poorly designed survey instrument can contribute to
embedding effects that can be largely avoided with an instrument that
identifies more effectively the good(s) to be valued.
Another commenter suggested that the measurement issues raised by
the embedding controversy involve a well recognized and potentially
serious category of biases that are referred to as ``amenity
misspecification.'' Although these potential biases pose a
methodological challenge to CV researchers and require careful
attention in the design phase of the study, they are often avoidable if
the scenario is plausible and the good is well described.
Response: NOAA rejects the ``top down'' approach advocated by the
commenters because it suffers from two problems that invalidate its use
in CV studies of lost passive use. First, the ``top down'' approach
permits respondents to change the levels of vast aggregates of public
goods as they move down a decision tree ordering of public goods toward
the injuries to be valued. Thus, the value given for the injuries is
predicated on the new levels of public goods chosen by the respondent
as he moves down the decision tree. Since each respondent may choose
his own levels for all public goods offered, and the levels of other
public goods in part determine the value of the injuries, it is
impossible to recover the value of the injuries associated with the
level of public goods that actually prevailed at the time the injuries
occurred from survey responses.
Second, at points in the decision tree lying above the injuries to
be valued, the definitions of the public goods provided to respondents
are necessarily broad and cover vast aggregates of public goods. The
result of this broad definition of the goods offered is a lack of
specificity regarding the components of any aggregate. It is left to
the respondent to decide for himself what the precise components of the
aggregate might be. The value finally given for the injuries in
question is dependent on the definitions of the public goods made by
the respondents at earlier levels and these definitions are unknown.
Therefore, no consistent set of definitions may be inferred and thus no
value for injuries, contingent upon those definitions, may be measured.
Finally, NOAA agrees with the commenters who believe that alleged
biases in CV responses resulting from the embedding phenomenon can be
avoided through careful questionnaire design and execution of the
survey.
``Pristine Environment''
Comment: One commenter noted that proponents of CV have not
addressed the issue of CV's capability of measuring passive use values
for less than pristine environments. That commenter questioned whether
CV can reliably measure passive use values in an already diminished
area.
Response: NOAA notes that there is nothing in the empirical
literature to suggest that respondents cannot formulate WTP estimates
for less than pristine environments. A well-designed survey instrument
that describes the baseline conditions before the discharge and the
impacts of the discharge should provide respondents with adequate
information upon which to base WTP.
``Temporal Measurement''
Comment: One commenter was concerned that CV has not been proven
capable of measuring passive use damages when there is gradual
restoration of the injured resources over time.
Response: In order to obtain reliable estimates of WTP, the CV
survey should provide a description of possible restoration activities
and their expected outcomes as well as the time period for natural
recovery. This information allows the respondent to distinguish between
interim and steady state losses and the timing of restoration. Given
such information, there is nothing in the empirical literature to
suggest that a respondent cannot submit a reliable WTP estimate.
Comment: One commenter asserted that in implementing a CV survey,
it should be made apparent that respondents can distinguish interim
from steady state losses. This assertion is based on the assumption
that most passive use values of natural resources may be derived only
or mostly from its steady state and not from its day-to-day state.
Response: NOAA rejects this comment as there is no empirical
evidence to suggest that passive use values are derived solely from the
steady state characteristics of the resource.
``Extent of the Market''
Comment: One commenter noted that the passive use values derived
from an environmental good are likely to be concentrated locally, but
may extend to a large distance. Deciding where to draw the line for
valuation is crucial. Another commenter noted that there is currently
no accepted theoretical or empirical structure for determining the
appropriate geographic extent of the population across which to
extrapolate the WTP values. Thus, damage figures derived from CV
studies for passive use values have no reliable or predictable basis.
Response: NOAA agrees that there is no clear line for determining
extent of the market, but it does not follow that passive use value
estimates have no reliable basis. The extent of the market is an
empirical question best left to the discretion of the trustee(s) in
consultation with their survey research experts, based on the
particular case in question and guided by the results of survey
pretests and pilots.
Comment: A few commenters asserted that CV studies focus on
controversial subjects and, as a result, exaggerated perceptions almost
certainly undermine the objectivity of the study. If CV is to be used,
it is imperative that surveys not be framed in terms of discharges of
oil, but rather should describe reductions in resource services due to
some noncontroversial source, such as natural mortality.
Response: The underlying concern of these commenters is whether the
potential controversy surrounding a discharge can undermine the
objectivity of a CV survey. NOAA believes that this potential problem
will not be a factor in well-designed CV surveys because they are
generally conducted at times sufficiently distant from the discharge.
This time lapse occurs because of the long lead-time necessary to
determine the likely injuries from the discharge so that they can be
accurately represented to the respondent and because of the time needed
to prepare and implement the final CV survey. Further, media attention
that may generate controversy will likely have focused on other events
by the time the full survey can be conducted. The referendum approach
also prevents potential controversy from tainting WTP. Because
respondents are voting to increase their own taxes or the price of a
consumer product such as oil rather than voting on how much the oil and
gas company should pay to remedy the injury, respondents cannot vent
their frustrations at the oil or gas company. Thus there is little or
no possibility that potential controversy will undermine the
objectivity of the CV study.
``Ex-ante v. Ex-post Questioning''
Comment: One commenter contended that CV surveys are biased and
inaccurate because they do not really measure the value of the resource
but are designed instead to determine WTP to prevent harm to a
resource. This is because CV is always carried out in the aftermath of
an accident and does not reflect pre-existing values independent of the
accident and the valuation process.
A number of critics of CV claimed that CV questionnaires focus on
total values (although passive use values dominated) in an ex-ante
setting--that is, protecting waterfowl and preventing injury resulting
from the discharge. They suggested that such ex-ante CV studies are
better suited for damage assessment than are assessments that involve
an ex-post valuation.
Response: In NOAA's judgment, the conceptually correct measure of
damages is the ex-ante WTA. That is, ideally one would wish to place
individuals at a point in time just prior to the injury and elicit from
them an expression of WTA for the future injury. For reasons discussed
earlier in the preamble, WTP, not WTA, is proposed as the basis for
measuring passive use values. Thus, the obvious WTP analog is ex-ante
prevention. It is true, though, that under certain circumstances, it
may not be possible to develop an ex ante WTP CV commodity that is both
plausible and reasonable to respondents. In these instances, the
trustee(s) is free to use ex-post WTP programs. The trustee(s) should
determine whether to use an ex-ante or an ex-post scenario on a case-
by-case basis.
``Distribution of Responses''
Comment: A number of critics of CV contended that the mean WTP is
estimated with low statistical precision, due to extreme responses. The
distribution of WTP appears to be strongly skewed, so that trying to
circumvent the problem by using medians or similar statistical devices
is likely to introduce serious bias. These commenters assert that very
large samples should be required to provide acceptable statistical
accuracy.
Response: NOAA agrees with the commenters that extreme responses
may skew results. However, standard practice in empirical research is
to begin with a large sample size and treat outliers appropriately.
NOAA believes that probability sampling is essential for a survey used
for damage assessment and that the size of the sample must be large
enough to ensure statistical precision. Due to the complexity of
sample-specific design and size, the trustee(s) should consult with
sampling statisticians in the design of a CV survey.
``Calibration/Scaling''
Comment: One commenter asked whether a CV study can generate useful
information when respondents fail to answer truthfully. This commenter
suggested that a ``calibration approach'' can be applied to
environmental goods, for example, a CV response predicated on a
hypothetical scenario could be statistically mapped into a response
that would be obtained if the opportunity to purchase the good were
actually provided. A number of commenters suggested that if systematic
divergence existed between actual behavior and CV survey responses and
this divergence could be quantified, then calibration of CV results
could be undertaken.
Response: NOAA notes that there are some studies that suggest that
stated intentions of WTP in CV surveys significantly exceed observed
responses in simulated markets or in solicitations for charitable
contributions (though none of the surveys meet the standards proposed
in the rule, and there is debate as to whether the simulated markets or
charitable contributions capture ``actual'' WTP). Because of the
possible bias, a discount factor is included in the proposed rule to
apply to estimated WTP. The proposed rule gives a default factor of 50
percent for the purposes of soliciting comment. However, the trustee(s)
may adopt a different calibration factor if it can be shown that a
different factor is appropriate for a specific application of CV.
``WTP vs. WTA''
Comment: A number of commenters addressed the subject of WTP versus
WTA compensation measures within the damage assessment context. Some of
these commenters noted that WTA is the correct measure because the
public trust doctrine embodied in OPA implies that the property right
for the resources rests with the government, in trust for the public.
Consequently, the public has the right to be compensated when injuries
occur. Another commenter stated that CV studies frequently find large
differences between WTP and WTA and that this difference is another
sign of the failure of CV to measure correctly any genuine underlying
preferences for passive use values. Other commenters noted that the
conventional wisdom applies only to changes in the price (of marketed
goods). Recent research has shown that, for changes in the quality of
either marketed or unmarketed goods, large differences between WTP and
WTA may be consistent with economic theory, particularly for public
goods.
Response: While NOAA agrees that the conceptually correct measure
of lost passive use value for environmental damage is WTA, it is
concerned that respondents to CV questionnaires would give
unrealistically high answers to such questions. Therefore, NOAA
contends that the WTP format should be used instead of the compensation
required (WTA) because the former is the conservative choice unless
future empirical evidence suggests otherwise. NOAA encourages the
trustee(s) to remain current with the state-of-the-art in this area and
to use the criterion that reflects the best available practice among
natural resource economists. NOAA disagrees with the assertion that the
large difference between WTA and WTP is an indication that CV fails to
correctly measure underlying preferences, as experiments have shown
that such differences also exist for market goods.
``Research''
Comment: Several commenters stated that the results of past CV
studies are sufficiently interesting and demonstrate sufficient promise
to warrant the commitment of substantial resources to further research.
There is an urgent need for methodological research on CV.
Response: NOAA encourages further research in this area.
``Expressions of Punishment''
Comment: One commenter claimed that CV surveys of passive use
permit the respondents in such surveys to express in their WTP amounts
feelings that responsible parties should be fined or punished for the
effects of discharges of oil.
Response: Such problems can be avoided in a properly designed
survey if the trustee(s) selects a voting format as the choice vehicle
coupled with a tax as the payment mechanism. By asking the respondent
how he or she would vote on such a plan if the plan would cost the
household $X, the respondent cannot express any anger directed at the
RP in terms of the respondent's household's willingness to pay for the
program offered, except possibly to refuse to answer the question or to
answer the question based on a belief that taxpayers should not be
required to pay for impacts resulting from the discharge.
``Survey Methods''
Comment: Several commenters argued that high nonresponse rates in
CV surveys would bias survey results, producing unreliable estimates.
Response: While NOAA agrees that a high response rate is desirable,
there is no bright line to determine at what level of response a
survey's results become ``unreliable.'' NOAA proposes that the
trustee(s) shall obtain as high a response rate as possible that can be
achieved at a reasonable cost while ensuring reliable inferences to the
general population.
In addition, good survey technique generally involves a followup
analysis of nonrespondents and/or respondents to determine whether the
sample is representative of the target population for the survey.
``Self-Selection Bias''
Comment: One commenter claimed that respondents with strong
environmental preferences have a higher survey response rate than those
with weaker preferences and thus are overrepresented in the final
sample employed in the passive use value calculations.
Response: NOAA disagrees with this comment. Under the survey
administration guidelines laid out in the proposed rule, probability
sampling is specified. Probability sampling ensures that the sample
drawn does not over-sample those with strong environmental preferences.
The proposed regulations also direct the trustee(s) to minimize
self-selection bias related to the contents of the survey instrument.
NOAA's recommended use of in-person interviews will help to ensure that
respondents do not know the true intent of the survey until the
interviewing process has started. Only at this time can a self-
selection bias enter, and previous evidence from in-person CV
interviews suggests that interviews once started are completed.
``No-answer Option''
Comment: One commenter asserted that a ``no-answer'' option should
be explicitly allowed in addition to the ``yes'' and ``no'' vote
options on the main valuation question of a CV survey.
Response: It is not clear at this time that the inclusion of a
``no-answer'' option would substantially change the measure of passive
use values for the injury. NOAA supports further research in the area.
``Survey Mode''
Comment: Several commenters criticized the use of mail and
telephone interviews in CV surveys, especially in the context of
complex goods. A few commenters argued in favor of mail surveys,
asserting that telephone and face-to-face interviews typically provide
the respondents with inadequate time to formulate a response or test it
against their actual budget and expenditures.
Other commenters argued that in-person interviews are simply not
required to elicit the ``opinions and feelings'' required from CV
questionnaires and may lead to bias in results by giving the issue high
apparent importance and exposing the respondent to undue influence from
the interviewer.
Response: There are advantages and disadvantages of each mode of
administration, and the selection of the appropriate method is
dependent on a number of factors such as cost, turn-around time,
desired response rate, type of information to be conveyed, use of
visual aids, required population coverage and the ultimate use of the
survey results.
After analyzing the advantages and disadvantages of each method,
NOAA believes that while mail surveys can provide invaluable
information for many academic studies and regulatory purposes (i.e.,
U.S. decennial census), mail surveys at this time lack certain features
that are desirable for use in the natural resource damage assessment
area. In deciding between the use of telephone and in-person surveys,
NOAA suggests that the trustee(s) consider seriously the use of in-
person interviews for the final survey because of the characteristics
of a survey needed for damage assessment purposes. A CV survey designed
for natural resource damage assessment purposes is likely to impart a
large amount of information to respondents causing interviews to be
lengthy and often complex. In-person interviews offer the opportunity
to motivate the respondents and to hold their interest by providing
important information in a graphical and pictorial format and asking
interactive questions regarding the respondents' understanding and
acceptance of key features of the instrument. It also permits
interviewers to record verbatim responses to important open-ended
questions. Such information may be critical in demonstrating that the
trustee(s) has adhered to the regulatory guidance proposed by NOAA.
NOAA, however, encourages the trustee(s) to consider the use of the
other modes of administration during the survey development stage. For
example, a telephone survey may be an appropriate and cost effective
method to test a design feature such as question ordering or the
understanding of technical terms. Further, NOAA is interested in
comparative empirical testing of other administration modes. If such
testing demonstrates that other modes can produce the type of
information and results comparable to in-person interviews, NOAA would
encourage the trustee(s) to consider the use of those methods for the
final survey.
``Standards for CV Studies''
Comment: Several commenters observed that if CV is to be included
in the rule, it is critical that NOAA provide strict guidelines that
minimize the problems associated with CV and identify cases where the
problems are relevant, despite efforts to minimize them.
Response: In this proposed rule, NOAA has provided guidelines for
the use of CV. The guidelines are discussed earlier in this preamble.
``Interviewer Effects''
Comment: One commenter suggested that CV surveys differ from actual
referenda since an interviewer is present. The commenter argued that
the presence of the interviewer can cause ``social desirability'' bias
since many of the programs that would be valued in a CV survey would
preserve or restore the environment, which may be considered ``socially
or politically'' correct. The implication of this bias would be
exaggerated expressions of willingness to pay. This comment recommended
that CV studies should test for the presence of such effects.
Response: Evidence of interviewer effects is sometimes found in
surveys that ask respondents questions about illegal behavior, such as
drug use, but there is no evidence to support the claim that the
presence of interviewers would bias the willingness-to-pay amounts
elicited in a CV survey used to assess natural resource damages.
Nevertheless, until research on this issue has produced definitive
conclusions, NOAA encourages the trustee(s) to be cognizant that such
effects may be present.
``Prior Approval''
Comment: One commenter recommended that the trustee(s) seeks
concurrence of the RP(s) prior to using a CV to measure passive use
values.
Response: NOAA always encourages cooperation between the trustee(s)
and RP(s) when appropriate. Due to the trustee's(s') fiduciary
responsibilities, however, the trustee(s) cannot be placed in the
posture of compromising his position in on-going or potential
litigation. Thus, the decision to seek prior concurrence from the RP(s)
is left to the discretion of the trustee(s). However, NOAA encourages
the trustee(s) and other interested parties, such as industry or
environmental groups, to consider cooperative development of CV surveys
for natural resources that may be at risk of being impacted by
discharges (i.e., resources of national marine sanctuaries). Such
studies could then be used as a reference value should a discharge
occur that injures such resources.
``Benefits Transfer Method''
Comment: One commenter stated that the concept of a ``unit day''
consisting of ``average per day values for resource uses'' is unsound
because it unfairly undervalues the injured resource by treating unique
resources as fungible. The commenter cited a statement in an earlier
Notice that unit day values should be accepted as a measure of damages
when there is a ``small spill or a small impact,'' and stated that if
such a measure is adopted, its use should only be allowed where there
is a ``small spill'' and ``small impact'' and the resource ranks low in
biodiversity.
Response: NOAA finds that the unit day value methodology is
appropriate to damage assessment, when applied under standard and
accepted procedures, and within the appropriate context. NOAA agrees
with the commenter that most applications of unit values are regarded
as relatively crude approximations of resource values. However, they
have proven useful when more rigorous, detailed, and theoretically
sound techniques are too costly or time consuming for the specific
application.
Comment: One commenter noted the use of user-day values of an
activity (i.e., recreation) or administratively-determined values have
been common for a variety of policy purposes in the past. Another
commenter noted that the absence of any accepted protocols for benefits
transfer make it important for NOAA to provide reasonable guidelines
for such transfers. Absence of such will assure lengthy and expensive
litigation for many incidents. Such guidance must be specific and yet
flexible. These guidelines should include the following criteria: (1)
Studies must meet minimum standards for quality assurance in terms of
data, theory, and analysis; (2) the activities from the transferred
studies must accurately mirror those impacted by the incident; and (3)
methodologies used for transfer should conform with standards for
benefits transfer, as they are developed.
Response: For purposes of damage assessments under OPA, use of
``benefits transfer'' is a practical necessity, given the time and
resources typically available to the trustee(s). While extensive
research into these procedures is underway in the academic community,
no formal benefits transfer protocol presently exists. The current
state-of-the-art in benefits transfer does suggest that where feasible,
it may be preferable to transfer a valuation function that
characterizes the variation in use values with characteristics of the
individuals and of the experience. However, NOAA agrees that the
quality of the studies to be transferred and the applicability of the
study context to the damage assessment context are important
considerations.
``General Guidance''
Comment: Many comments were received concerning the appropriate
discount rate. Several commenters stated that the rules should
establish that present value of future year damages be discounted at
the 10% discount rate as upheld in the Ohio vs. DOI ruling. Other
commenters were critical of the 10% rate. Those commenters indicated
that the 10% rate was too high, unrealistic, and inadequately
represented future generations' interest. Instead of the 10% rate, some
commenters recommended much lower rates, ranging from 0% to 3%. Others
recommended that NOAA allow the rate to be determined on a case-by-case
basis.
Response: NOAA finds that the appropriate rate of discount to be
used by a trustee(s) is the U.S. Treasury note. For a detailed
explanation of the rationale for this choice, see the earlier preamble
discussion on discount rates.
Comment: Several commenters addressed the concept of ``committed
use,'' i.e., current or planned public uses at the time of the
discharge, within OPA damage assessment regulations. Some expressed
concern that restricting damage determination to ``committed uses''
would significantly understate the true value of the injured resource,
and thus fail to provide adequate compensation to fully offset the
public loss.
Response: NOAA feels that the concept of committed use adequately
provides compensation for public losses resulting from resource injury
due to a discharge of oil. As stated in the preamble, committed use
implies that a resource is or has been directly utilized or employed or
there exist attributable passive use values. In addition, a documented
future use is considered a committed use, and thus would be included in
compensable and recoverable damages, assuming incomplete recovery of
the resource or delay in implementation of a future use due to a
recovery timelag.
Comment: One commenter suggested that estimates of diminution of
value must consider the availability of substitutes.
Response: NOAA agrees that in calculating the diminution in value,
it is desirable to take into account the availability of substitute
services. However, incorporating such information may increase the cost
and complexity of a damage assessment. Therefore the additional cost
and complexity should be undertaken only if the potential benefits from
an increase in accuracy of the damage estimate outweighs the potential
increase in damage assessment costs.
Comment: Some commenters observed that in assessing diminution in
value the extra cost of obtaining substitute services may be regarded
as the upper bound estimate of that loss.
Response: NOAA disagrees that the extra cost of obtaining
substitute services is necessarily an upper bound of the loss. Unless
the substitute source(s) is a perfect equivalent and has sufficient
capacity to accommodate additional demand without congestion, the extra
cost of obtaining those services will not reflect the true and complete
attributable loss.
Comment: A number of commenters addressed the subject of WTP versus
WTA compensation measures within the damage assessment context. Some of
these commenters noted that WTA would be the correct measure.
Response: As noted above, NOAA concurs that WTA is the correct
measure of compensation. At present, WTA is very difficult to elicit
from respondents in a reliable manner. Consequently, NOAA recommends
that CV studies elicit the more conservative WTP criterion at the
present time. For methodologies such as the travel cost model in which
exact (Hicksian) welfare measures, measuring monetized changes in
utility, can be derived from the Marshallian models through analytical
techniques, WTA and WTP measures are of equal reliability. In those
circumstances, WTA should be used where feasible.
Subpart H--Post-Assessment Preamble Language
Introduction
At the completion of an assessment of any type described in this
proposed rule, the trustee(s) shall prepare a Report of Assessment,
present a demand for damages to the RP, set up an account to receive
any payment of those sums, and develop a Final Restoration Plan. If a
settlement agreement is reached at any point before the formal
completion of the assessment, the same basic steps are required, except
that the sum agreed upon as damages constitutes the demand for damages.
Also, if there is a Regional Restoration Plan in place through prespill
planning to which the damages may be appropriately applied, the
trustee(s) need not develop a separate Final Restoration Plan.
Report of Assessment
At the conclusion of an assessment, the trustee(s) shall prepare a
Report of Assessment as described in Sec. 990.80 of the proposed rule.
The Report of Assessment should be made available to the public, but
the timing of publication may vary. In some cases, the trustee(s) may
wish to issue the Report of Assessment in connection with entry of a
consent decree resolving natural resource damage claims, in order to
give the court and the public adequate information to evaluate the
settlement.
The Report of Assessment consists of the DARP, as modified based
upon any comments received on the DARP. The Report of Assessment
describes the selected restoration approach and the estimated costs of
implementing that approach. The Report of Assessment will also contain
an index of the administrative record of the assessment as an
attachment.
Demand
At the conclusion of the assessment, the trustee(s) should present
to the RP(s) a demand in writing for the damages, as described in
Sec. 990.81 of the proposed rule. The demand should be delivered to the
RP(s) in a manner that will establish the date of receipt.
The demand shall include an identification of the discharge of oil
from which the claim arises, the natural resource trustee(s) asserting
the claim, and a brief description of the natural resources and/or
services for which the claim is being brought. The demand will include
the Report of Assessment as an attachment. Finally, the demand shall
state the amount of damages being sought.
The damages presented in the demand will include the estimated
costs to restore, replace, rehabilitate, or acquire the equivalent of
the injured natural resources and/or their services, the diminution in
value pending that recovery, costs already incurred in carrying out
emergency restoration, and the reasonable costs of conducting the
assessment and recovering the damages.
Review of Damage Figure
As explained earlier in this preamble, NOAA is proposing that the
restoration component of the Report of Assessment be granted record
review. Therefore, of the total damage figure, that part of damages
representing the estimated costs of implementing the restoration
component is that portion subject to record review. The other damages,
including but not limited to assessment costs and compensable values,
are to be reviewed with the trustee(s) receiving the benefit of the
rebuttable presumption.
Account
This proposed rule allows the use of various types of accounts into
which the trustee(s) may place sums recovered. If more than one trustee
is involved in the recovery, the proposed rule, in Sec. 990.82(a),
allows trustees to establish a ``joint trustee account'' under the
registry of the applicable federal court when there is a joint recovery
involving both federal trustees and state or Indian tribe trustees. A
federal court is listed since section 1017(b) of OPA states that
actions for natural resource damages shall be filed in a United States
district court. Such an account may be interest bearing, depending upon
the rules of the court. The joint trustee account should be managed by
all trustees through a mutually agreed upon trustee committee or
council. Such an account and its management could be agreed to in a
Memorandum of Understanding (MOU) such as the one suggested in
Sec. 990.16 and given as an example in Appendix A.
While the joint trustee account may be the preferred alternative,
trustees also have the option of dividing the recoveries and depositing
their respective amounts in their own separate accounts. These accounts
should be interest-bearing, revolving trust accounts. These accounts
may be new, separate accounts established for each incident or
preexisting accounts to which additional deposits are allowed for
specific purposes. In addition, trustees may establish escrow accounts
or any other type of investment account(s) unless specifically
prohibited by law.
Regardless of the placement of recoveries into joint or separate
accounts, the sums shall be used as specified in Sec. 990.83 of this
proposed rule. Also, the trustee(s) must maintain appropriate
accounting and reporting methods to ensure the proper use of sums
recovered, including independent auditing.
Although OPA clearly intends that trustee accounts are to be
interest bearing, there may be circumstances where this is not the
case, e.g., the rules of the court on court registry accounts do not
allow it. Therefore, it is essential that the trustee(s) determines the
likely repository of any potential recovery when determining the
appropriate damage amount to demand. The calculation of the expected
present value of the damages amount should be adjusted to correct for
the anticipated effects of inflation over the time estimated to
complete the restoration alternative chosen. The damage amount should
be adjusted by the rate payable on notes or bonds issued by the United
States Treasury with a maturity date that approximates the length of
time estimated to complete the chosen restoration alternative.
Because of the possibly long-term nature of the Regional
Restoration Plan described in Sec. 990.84(b) of this proposed rule,
this adjustment for inflation applies only to the incident- specific
restoration plans described in Sec. 990.84(a) of the proposed rule.
Use of Sums Recovered
As mentioned earlier, section 1006 of OPA establishes damages for
injury to natural resources to be the: (1) Costs of restoring,
rehabilitating, replacing, or acquiring the equivalent of the injured
natural resources and their services; (2) diminution in value of those
natural resources and/or services pending the restoration; and (3)
reasonable costs of assessing those damages. The damages recovered are
to be placed, upon receipt, into one of the accounts described in
Sec. 990.82 of the proposed rule.
At the trustee's(s') option, prior to the deposit of a recovery in
an account, the trustee(s) may request immediate receipt of those sums
recovered that represent assessment costs already incurred, costs
necessary to complete the assessment, emergency expenses, costs
necessary to develop the final restoration plan and costs to implement
a restoration plan or individual project that is part of that
restoration plan. The remaining sums, those consisting of restoration
or replacement costs and diminution of value, are damages representing
compensation for the injuries to the natural resources.
The damages representing compensation are to be spent to develop
and implement a final restoration plan. In order to refine this
restoration plan, the trustee(s) should be allowed to immediately use
that part of the damages representing compensation necessary to meet
the expenses involved in developing the final restoration plan.
Final Restoration Plan
The proposed rule describes two types of Final Restoration Plans.
First, the trustee(s) may develop an Incident-Specific Restoration Plan
to address the effects of the discharge of concern. This plan shall be
based upon the restoration component developed under subpart G of the
proposed rule. This Final Restoration Plan is the post-assessment
restoration planning document. This plan should serve to define the
objectives and the approach for the particular discharge site, and
establish the procedures for restoration, and where applicable,
rehabilitation, replacement, and acquisition of the equivalent actions.
The Final Restoration Plan incorporates all proposed restoration
activities for the discharge site that have been selected by the
trustee(s), taking into consideration public comments. Once damages are
awarded or a settlement with the RP(s) reached, the trustee(s) shall
review the restoration plan for possible modifications. The Final
Restoration Plan shall take into account the available funds;
priorities of natural resources and/or services of concern; direct and
indirect (i.e., interdependency and feedback between restoration
options) benefits to the natural resources and/or services of concern;
and sequence of restoration steps. If there are significant
modifications between the restoration component of the DARP made
available to the public prior to the damage award, and the restoration
plan that the trustee(s) intends to implement after receiving the
award, the rule requires the trustee(s) to make the revised plan
available to the public for a 30 calendar day comment period. The
trustee(s) should make the plan publicly available, along with a
response to public comments.
Under this proposed rule, the trustee(s) would also be allowed to
pool recoveries to apply them to a Regional Restoration Plan, as
described in Sec. 990.16 of this proposed rule. Where such a plan
already exists, whether developed through prespill planning efforts or
under regular management efforts, that plan may be used subject to the
conditions listed below. This option will likely be most useful in
areas with long-term pollution effects where damages from a single
discharge would be too small to ``restore'' the ecosystem or where the
planning costs for the restoration after a single discharge would be
quite high compared to the damage figure. This type of approach may
allow meaningful restoration efforts to result from several recoveries
received through the use of a compensation table or one of the Type A
models developed by DOI. However, where a Regional Restoration Plan has
not been developed, an Incident-Specific Restoration Plan must be
developed for use of the damages recovered.
The proposed rule states that, to qualify as a Regional Restoration
FR Doc. 94-225 Natural Resource Damage Assessments
Plan under this rule, the plan must be developed through a process
consistent with the prespill planning process described in Sec. 990.16
of the proposed rule. The plan must also address the same or similar
resource injuries as those identified in the assessment procedure.
These requirements are completely consistent with the DOI rule at 43
CFR 11.93, which also allows for pooling damages assessed using a Type
A procedure.
Post Assessment Response to Comments
``Account''
Comment: Some commenters suggested the OPA rule allow for the
establishment of an account in the court registry, particularly where
federal and state trustees are jointly seeking natural resource
damages. One commenter suggested this joint account may ensure that
monies will be spent on restoration without obtaining special
appropriations from the legislature. It also provides a mechanism for
state and federal trustees to decide on expenditure of funds. Other
commenters, however, stated that the role of the court should be
limited to ensuring that uses of sums recovered are consistent with the
statutory directives, and noted that such accounts do not yield a high
rate of interest.
Response: NOAA agrees with the commenters suggesting deposit of
sums recovered into an account in the court registry and has allowed
that as an option in Sec. 990.82(a) of the proposed rule. NOAA also
notes that there are concerns over expanding the role of the court to
assume a greater role than the statute seems to allow. However, it is
unlikely that a court would usurp the role of the trustee(s) over the
management of the natural resources where the trustee(s) has developed
a plan for the use of such sums.
Comment: A few commenters indicated that a joint fund system will
only work if the trustees work well together and can agree on a process
to manage and disburse the funds. These commenters suggested that there
should be provisions for dispute mechanisms and for a working group
dissolution. Otherwise, the commenters were concerned that funds for
restoration would be stuck in the account pending resolution of
disputes.
Response: NOAA agrees that the trustee(s) should establish a
process for management and disbursement of the funds in a way to avoid
deadlock.
Comment: Two commenters noted that funds awarded for natural
resource damages under 43 CFR part 11 must go into non-interest bearing
accounts in the Federal Treasury, but that supplemental appropriations
language permitted DOI to place award monies into an interest-bearing
account.
Response: NOAA notes that the 43 CFR part 11 rule may have a
different provision for interest-bearing accounts. However, OPA does
provide for such accounts.
Comment: One commenter, although agreeing with the joint trustee
account, encouraged NOAA to develop alternatives that would eliminate a
trustee's submissions to a legislative appropriations process before
using the awarded monies. Another commenter suggested an alternative of
an additional ``Joint Trust Fund'' to be applied to costs other than
those paid by the RP(s). The single account would simplify
administration of the monies, as opposed to the trustees dividing the
funds into their various agency accounts.
Response: NOAA points out that the accounts provided for in
Sec. 990.82 of the proposed rule allow for use of funds without
appropriations, as provided for in section 1006(c) of OPA. Also, it
would be allowable for the trustee(s) to deposit monies other than
those paid by the RP(s) into these accounts.
Comment: One commenter recommended that the RP(s) pay directly for
services performed under its supervision in lieu of depositing funds in
the Federal Treasury. One commenter noted that if the RP(s) is to
underwrite a joint fund, or any fund, the RP(s) must legally have a
primary role in the management of the funds.
Response: NOAA agrees that the RP(s) may pay directly for
restoration actions (see discussion on ``Participation of the
Responsible Party'' earlier in this preamble). However, NOAA cannot
agree that the RP(s) who pays into an account would have a primary role
in managing the account. Once the money is paid to the trustee(s), it
is then the responsibility of the trustee(s) to manage the account
according to statutory directions. Under the discretion of the
trustee(s), the RP(s) may have the right to participate in the
development of the restoration plan, which will be paid for by the
monies in the account.
``Accounting for Expenditures''
Comment: One commenter also urged a final disclosure and accounting
of the recovered funds to the RP(s) and to the public.
Response: NOAA agrees that the trustee(s) must provide an
accounting of the way recovered sums are used. Therefore,
Sec. 990.82(d) of this proposed rule requires the trustee(s) to
maintain appropriate accounting and reporting methods to document the
use of the sums recovered.
``Use of Sums''
Comment: Several commenters noted that the only activities to which
recovered sums can be dedicated are assessments and the implementation
of restoration plans. Some commenters stated that the first priority of
the funds should be restoration, and only if restoration is not
possible, or when the cost of those restoration alternatives would be
grossly disproportionate to the value of the resources involved, should
other actions, such as acquisition of the equivalent be considered.
Another commenter strongly urged that any sums recovered by the federal
government for discharges occurring in a state should be spent in the
same state.
Response: NOAA agrees that sums recovered as damages should be used
to restore, replace, rehabilitate, or acquire the equivalent of the
injured natural resources as required by OPA. OPA suggests that
restoration, replacement, or rehabilitation be the first choices of
action, with the trustee(s) acquiring equivalent natural resources only
when restoration is not possible or the cost would be grossly
disproportionate to the value of the resources. The proposed rule
allows the trustee(s) to make those determinations. NOAA does not agree
that the rule should require that sums recovered by the federal
government always be spent in the state in which the incident occurred.
The nature of the federal trust resources that are not ``land'' is such
that those resources are likely either to cross state boundaries or to
be of national interest. For example, if a large number of migratory
birds is killed by a discharge of oil in a flyway, the most appropriate
method of restoring those populations may be to enhance the birds'
nesting grounds hundreds of miles away from the discharge site.
``Reimbursement of Assessment Costs''
Comment: Another commenter stated the rules should be clear about
the use of recovered sums that represent the costs of the assessment
and emergency restoration by ensuring the trustee(s) will have ready
access to that portion.
Response: NOAA agrees with this commenter and points out that
Sec. 990.83(a) specifies that the trustee(s) is to have immediate
reimbursement of assessment costs already incurred, costs necessary to
complete the assessment, emergency restoration expenses, costs
necessary to develop the final restoration plan and costs to implement
a restoration plan or individual project that is part of that
restoration plan.
Comment: Several commenters strongly rejected uses of ``recoveries
from previous spills'' or current recoveries held in suspense until
there is a sufficient amount of money to conduct restoration activities
``on an ecosystem, bay or area approach.'' Commenters argued that
pooling and usage of funds is contrary to the principles of
compensatory damages and avoidance of double damages enunciated by
Congress in passing OPA. Further, this usage contradicts section
1006(f) that ``there be a nexus between monies recovered resulting from
a particular spill and their use to restore or enhance the specific
resources `affected by a discharge.''' They cite section 1006(c), that
requires the trustee(s) to ``implement'' the specific restoration plans
that have provided the basis of the RP's(s') liability. Some commenters
argue that, only when the RP(s) can refer to the site-specific
restoration measures undertaken by the trustee(s) for a specific
discharge of oil, can it defend itself against overlapping claims by
other trustees.
One commenter noted that Congress defined ``equivalence'' as
properly focused on ``enhanc[ing] the recovery, productivity, and
survival of the ecosystem affected by a discharge.'' As such, both the
statute and legislative history reflect congressional intent for a
strong connection between recovered monies in a case and their
application.
Another commenter, however, supports a pooling of funds in order
to fund a restoration plan for an entire region, provided a legally-
approved regional restoration plan exists. The commenter supports this
so long as NOAA maintains the definition of ``acquisition of the
equivalent'' or ``replacement'' as it appeared in the ANPRM of March
13, 1992, so that sums are not spent on unlike resources.
Response: NOAA does not believe that pooling recoveries for use in
a Regional Restoration Plan contradicts the requirement in OPA that
recoveries be used to restore the resources affected by a discharge. A
relatively small recovery, assessed by a compensation table or Type A
model, is unlikely to be sufficient to restore a bay or estuary
affected by a discharge where many forces are working to degrade that
ecosystem. By pooling recoveries, the trustee(s) has a chance to carry
out meaningful actions to help that system recover. The trustee(s), in
the assessment, is to outline how the damage figure was derived, i.e.,
compensation table or Type A model. Those procedures are based on
restoration costs when feasible. If restoration is not feasible for
such a discharge, both the compensation table and Type A model base
damages on compensable value. Therefore, recoveries are to go to
restoring the services previously provided by the injured resources. In
this way, a Regional Restoration Plan will help return those services.
The RP(s) will be able to defend against an attempted double recovery
by showing how the damage figure is to be applied within the regional
restoration plan. As one commenter pointed out in the legislative
history, the monies recovered are closely tied to the ``ecosystem
affected.'' The definitions of ``replacement'' and ``acquisition of the
equivalent'' remain in the proposed rule and should help ensure that
the pooled recoveries are, in fact, meaningfully used for the recovery
of the system.
```Excess' Recoveries''
Comment: Many commenters noted that any excess monies should be
deposited in the Oil Pollution Trust Fund and not be used for unrelated
environmental projects.
Response: The proposed rule allows for the recovery of damages
required by OPA, namely: (1) the cost of restoring, rehabilitating,
replacing or acquiring the equivalent of, the damaged resources pending
restoration; (2) the diminution in value of those natural resources
pending restoration; plus (3) the reasonable cost of assessing those
damages. The recovery of those three items is not excess recovery. The
trustee(s) is to use the money to restore, rehabilitate, replace, or
acquire the equivalent of the damaged resources and/or services
provided by those resources and to reimburse the reasonable costs of
conducting the assessment. Any recoveries that may be left over after
implementing the restoration plan shall be deposited in the Oil Spill
Liability Trust Fund.
National Environmental Policy Act, Executive Order 12866, Regulatory
Flexibility Act, and Paperwork Reduction Act
The National Oceanic and Atmospheric Administration has determined
that this rule does not constitute a major federal action significantly
affecting the quality of the human environment. Therefore, no further
analysis pursuant to Section 102(2)(C) of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332(2)(C)) has been prepared. The
General Counsel, in accordance with the Regulatory Flexibility Act,
certifies to the Chief Counsel for Advocacy, Small Business
Administration, that this proposed rule will not have a significant
economic effect on a substantial number of small entities.
The National Oceanic and Atmospheric Administration has determined
that this document is not a major rule under Executive Order 12866. The
rule provides optional procedures for the assessment of damages to
natural resources. It does not directly impose any additional cost. In
addition, estimates of the potential economic effects of this rule are
well below $100 million annually. As the rule applies to federal,
state, and tribal entities acting as trustees for natural resources, it
is not expected to have a significant effect on a substantial number of
small entities.
It has been determined that this rule does not contain information
collection requirements that require approval by the Office of
Management and Budget under 44 U.S.C. 3501 et seq.
List of Subjects in 15 CFR Part 990
Coastal zone, Endangered and threatened species, Energy,
Environmental protection, Estuaries, Fish, Fisheries, Fishing,
Gasoline, Historic preservation (archeology), Hunting, Incorporation by
reference, Indian lands, Marine pollution, Migratory birds, National
forests, National parks, National Wild and Scenic Rivers System,
Natural resources, Navigable waters, Oil, Oil pollution, Petroleum,
Plants, Public lands, Recreation and recreation areas, Rivers,
Seashores, Shipping, Waterways, Water pollution control, Water
resources, Water supply, Water transportation, Wetlands, Wildlife.
Dated: December 30, 1993.
Katharine W. Kimball,
Deputy Assistant Secretary for Oceans and Atmosphere.
Under the authority of the Oil Pollution Act of 1990, and for the
reasons set out in this preamble, title 15 of the Code of Federal
Regulations, chapter IX is proposed to be amended to add a new
Subchapter E--Oil Pollution Act Regulations and a new part 990 as set
forth below.
SUBCHAPTER E--OIL POLLUTION ACT REGULATIONS
PART 990--NATURAL RESOURCE DAMAGE ASSESSMENTS
Subpart A--General
Sec.
990.10 Scope and Applicability.
990.11 Purpose.
990.12 Overview.
990.13 Definitions.
990.14 Recovery of Damages.
990.15 Administrative Record for Development of Draft Assessment/
Restoration Plan.
990.16 Prespill Planning.
990.17 Participation of the Responsible Party(ies). RP(s).
990.18 Compliance with Other Applicable Laws and Statutes.
990.19 Review of Regulations.
Subpart B--Preassessment Phase
990.20 Preassessment Phase--General.
990.21 Preassessment Phase--Preassessment Determination.
990.22 Preassessment Phase--Damage Assessment Determination.
990.23 Preassessment Phase--Damage Assessment Selection.
990.24 Preassessment Phase--Data Collection and Analysis.
990.25 Preassessment Phase--Emergency Restoration.
Subpart C--Draft Assessment/Restoration Plan
990.30 Draft Assessment/Restoration Plan--General.
990.31 Draft Assessment/Restoration Plan--Content.
990.32 Draft Assessment/Restoration Plan--Development.
990.33 Draft Assessment/Restoration Plan--Other Elements.
Subpart D--Assessment Phase--Compensation Formulas
990.40 Compensation Formulas--General.
990.41 Compensation Formulas--Estuarine and Marine Formula.
990.42 Compensation Formulas--Inland (Freshwater) Waters Formula.
Subpart E--Assessment Phase--Type A Models
990.50 Type A Models--General.
990.51 Type A Models--Natural Resource Damage Assessment Model for
Coastal and Marine Environments, Version 1.2.
Subpart F--Assessment Phase--Expedited Damage Assessment
990.60 Expedited Damage Assessment--General.
990.61 Expedited Damage Assessment--Selection.
990.62 Expedited Damage Assessment--Objectives and Approach.
990.63 Expedited Damage Assessment--Injury Determination.
990.64 Expedited Damage Assessment--Injury Quantification.
Subpart G--Assessment Phase--Comprehensive Damage Assessment
990.70 Comprehensive Damage Assessment--General.
990.71 Comprehensive Damage Assessment--Injury Determination.
990.72 Comprehensive Damage Assessment--Injury Quantification.
990.73 Comprehensive Damage Assessment--Restoration/General.
990.74 Comprehensive Damage Assessment--Restoration Component
Development.
990.75 Comprehensive Damage Assessment--Analysis and Selection of
Restoration Alternatives.
990.76 Comprehensive Damage Assessment--Evaluation of Restoration.
990.77 Comprehensive Damage Assessment--Compensable Values.
990.78 Comprehensive Damage Assessment--Compensable Values,
Measurement Techniques.
990.79 Comprehensive Damage Assessment--Compensable Values,
Implementation Guidance.
Subpart H--Post-Assessment Phase
990.80 Post-assessment Phase--Report of Assessment.
990.81 Post-assessment Phase--Demand.
990.82 Post-assessment Phase--Accounts.
990.83 Post-assessment Phase--Use of Sums Recovered.
990.84 Post-assessment Phase--Final Restoration Plan.
Appendix A to Part 990--Draft Memorandum of Understanding
Appendix B to Part 990--Memorandum of Agreement
Appendix C to Part 990--Expedited Damage Assessment: Oil
Characteristics
Appendix D to Part 990--List of Acronyms
Authority: 33 U.S.C. 2706(e).
Subpart A--General
Sec. 990.10 Scope and applicability.
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 of oil into or upon navigable waters,
adjoining shorelines, or the Exclusive Economic Zone. OPA also provides
for the designation of federal, state, tribal, and foreign officials to
act on behalf of the public as trustee(s) for natural resources. In the
event that natural resources are injured, lost, destroyed, or the loss
of use of natural resources occurs as a result of a discharge of oil
covered by OPA, these officials are authorized to assess natural
resource damages, present a claim for those damages, and develop and
implement a plan for the restoration, rehabilitation, replacement, or
acquisition of the equivalent of the natural resources under their
trusteeship. Because the assessment procedures provided in this part
are not mandatory, a trustee(s) may use other assessment procedures.
However, this proposed rule must be used by the natural resource
trustee(s) in order to obtain the rebuttable presumption provided by
section 1006(e)(2) of OPA. This part applies to discharges covered by
OPA. This part supplements the procedures established under the
National Oil and Hazardous Substances Pollution Contingency Plan (NCP),
40 CFR Part 300, for the identification, investigation, study, and
response to a discharge of oil, and provides procedures by which the
natural resource trustee(s) can determine compensation for injuries to
natural resources that are not addressed by response actions conducted
pursuant to the NCP.
Sec. 990.11 Purpose.
This part provides a range of standardized and cost- effective
procedures for assessing natural resource damages. These procedures
will allow expeditious actions on the part of the trustee(s) to return
natural resources and/or services to the public as compensation for
injuries resulting from a discharge of oil. The results of an
assessment performed by the federal, state, or tribal natural resource
trustee(s) according to these procedures shall be accorded the
evidentiary status of a rebuttable presumption as provided in section
1006(e)(2) of OPA.
Sec. 990.12 Overview.
(a) General. This part provides guidance on three basic phases that
may be a part of a natural resource damage assessment under OPA. These
three phases are: Preassessment Phase, Assessment Phase, and Post-
Assessment Phase.
(b) Organization. Each of the three basic phases described above
has various components. Phase I includes the Preassessment Phase--
subpart B of this part. Phase II includes the Assessment Phase--
subparts C, D, E, F and G of this part. Finally, Phase III includes the
Post-Assessment Phase--subpart H of this part.
Sec. 990.13 Definitions.
Acquisition of the equivalent means obtaining natural resources
and/or services that the trustee(s) determines are comparable to those
injured.
Assessment area means the area in which natural resources and/or
services are affected by the discharge of oil.
Baseline means the condition(s) of the natural resources and/or
services, taking into account natural or other (human-induced)
variability, that would have existed had the discharge of oil under
investigation not occurred. In the absence of reliable data on
variability, the baseline is the condition of the resources and/or
services of interest immediately prior to the discharge.
Baseline data means those data that are systematically collected
for natural resources and/or services environmental parameters of
interest over a period of time and on a regular basis.
CERCLA means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. 9601 et
seq., frequently referred to as the ``Superfund Act.''
Commercial services or ``resources of commercial importance'' means
those natural resources and/or services that are oriented toward the
provision of income or profit for a private party. Examples include:
agriculture, shipping, commercial fishing, charter boat operations,
water intake for plant operations, mining, and log harvesting.
Compensable values means the total diminution in value of the
injured natural resources and/or services as a result of the discharge,
from the onset of the discharge until recovery to baseline or
comparable conditions is deemed complete by the trustee(s).
Comprehensive damage assessment (CDA) means a range of procedures
to assess damages to natural resources and/or services based on
complex, prolonged studies.
Contributing factor means where multiple factors may have
contributed to an indivisible injury to a natural resource and/or
service, the discharge of oil may be considered a contributing factor
to the injury.
Control means conditions where all variables, except the presence
of the discharged oil, are the same, and which can be manipulated,
measured, and monitored.
Cost-effective means that when two or more activities provide the
same or comparable level of benefits to the natural resources and/or
services, the least costly activity providing that level of benefits
will be selected.
Damages means the amount of money calculated to compensate for
injury to, destruction of, loss of, or loss of use of natural
resources, including the reasonable costs of assessing or determining
the damage, which shall be recoverable by the United States, a state,
Indian tribe, or foreign trustee.
Destruction means the total loss of a natural resource and/or
service.
Direct use value means the value individuals derive from direct use
of a natural resource, including consumptive and nonconsumptive uses.
Discharge means any emission of oil (other than natural seepage),
intentional or unintentional and includes, but is not limited to,
spilling, leaking, pumping, pouring, emptying, or dumping.
Ecological services or ``resources of ecological importance'' means
the physical, chemical, and biological functions that one natural
resource provides for another. Examples include the provision of food,
protection from predation, nesting habitat, biodiversity, erosion
control, and waste assimilation.
Effect means the impact on or result of a natural resource and/or
service exposed to the discharge of oil.
Equivalent resources mean those natural resources that provide the
same or comparable services as the injured resources.
Exclusive Economic Zone means the zone established by Presidential
Proclamation Number 5030, dated March 10, 1983, including the ocean
waters of the areas referred to as ``eastern special areas'' in Article
3(1) of the Agreement between the United States of America and the
Union of Soviet Socialist Republics on the Maritime Boundary, signed
June 1, 1990.
Expedited damage assessment (EDA) means a range of procedures to
assess damages to natural resources and/or services based on limited,
focused studies.
Exposed to means all or part of a natural resource that may be in
contact with oil or with any medium containing the oil.
Exposure means that the natural resource was exposed and there is a
pathway between the discharge and exposed natural resource.
Fund means the Oil Spill Liability Trust Fund, established by
section 9509 of the Internal Revenue Code of 1986 (26 U.S.C. 9509).
Historical data means those data that are collected for natural
resources and/or services but that may be temporally or spatially
discontinuous.
Incident means an occurrence 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.
Injury means any adverse change in a natural resource or impairment
of a service provided by a resource relative to baseline, reference, or
control conditions. Injury incorporates the definitions of
``destruction,'' ``loss,'' and ``loss of use.''
Injury resulting from a discharge of oil (or injury caused by the
discharge of oil) has been determined when the trustee(s) has
demonstrated that:
(1) With direct exposure,
(i) The natural resource was exposed;
(ii) There is a pathway between the discharge and exposed natural
resource; and
(iii) The exposure of oil, its components, or by-products has been
shown by rigorous and appropriate scientific methodology to have an
adverse effect on the natural resource in laboratory experiments or the
field; or
(2) In the absence of direct exposure,
(i) The adverse effect on or impaired/diminished use of a natural
resource has been shown by rigorous and appropriate scientific
methodology; and
(ii) The adverse effect on or impaired/diminished use of the
natural resource would not have occurred but for the fact of the
discharge or threat of a discharge.
Lead administrative trustee (LAT) means a natural resource trustee
who is designated on an incident-by-incident basis for the purpose of
preassessment and damage assessment, and chosen by the other trustees
whose natural resources are affected by the incident. The LAT
facilitates effective and efficient communication between the OSC and
other natural resource trustees regarding their activities during the
Response Phase. An LAT may also be chosen to coordinate prespill
planning for damage assessment.
Loss means a reduction in a natural resource.
Loss of use of means a reduction in a service provided by the
natural resource.
Natural resource(s) or resource(s) means land, fish, wildlife,
biota, air, water, ground water, drinking water supplies, and other
such resources belonging to, managed by, held in trust by, appertaining
to or otherwise controlled by the United States (including the
resources of the Exclusive Economic Zone), any state or local
government, Indian tribe or foreign government.
Natural resource damage assessment or assessment means the process
of collecting and analyzing information to determine damages for
injuries to natural resources and/or services as set forth in this
part.
Navigable waters means waters of the United States, including the
territorial sea.
Oil means oil of any kind or in any form, including, but not
limited to, petroleum, fuel oil, sludge, oil refuse, 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 the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA, 42 U.S.C. 9601) and
which is subject to the provisions of that Act.
OPA means Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq.
Passive use value means the value individuals place on natural
resources that are not linked to direct use of a natural resource by
the individual, including, but not limited to, the value of knowing the
natural resource is available for use by family, friends, or the
general public; the value derived from protecting the natural resource
for its own sake; and the value of knowing that future generations will
be able to use the natural resources.
Pathway means the course the oil takes from the point of discharge
to, between, and among natural resources.
Person means an individual, corporation, partnership, association,
state, municipality, commission, or political subdivision of a state,
or any interstate body.
Protocol means scientific, economic, legal, or regulatory accepted
procedures used as guidance to implement an activity.
Reasonable cost of assessment means those costs incurred in
performing a natural resource damage assessment, or any part thereof,
in accordance with this rule.
Recovery means the return of the injured natural resource and/or
service to its baseline or comparable condition within the constraints
of natural or other (human-induced) variability.
Recovery period means the length of time required for the injured
natural resources and/or services to return to their baseline or
comparable condition.
Recreational services or resource of recreational importance means
the direct use of natural resources by individuals for purposes of
enjoyment or relaxation. Examples include consumptive uses (those uses
that involve harvesting of the resource) such as fishing and hunting,
as well as nonconsumptive uses such as swimming, picnicking, boating,
bird watching, nature photography, hiking, and camping.
Reference means a natural resource and/or service that is
physically, chemically, and/or biologically similar to that affected by
the discharge.
Rehabilitation means actions that bring injured natural resources
and/or services to a state different from baseline conditions, but
still beneficial to the environment and public.
Replacement means actions that substitute natural resources and/or
services for those injured. The natural resources and/or services that
are substituted provide the same or comparable resources and/or
services as those injured.
Resources of special significance means a category of natural
resources that is afforded statutory or regulatory protection (e.g.,
threatened or endangered species), or is of cultural or archaeological
significance (e.g., religious or native American artifacts).
Responsible party (RP) means a person described in or potentially
described in one or more of the categories set forth in section
1001(32) of OPA.
Restoration means actions that return injured natural resources
and/or services to their baseline condition.
Services or natural resource services means the physical, chemical,
biological, aesthetic, and cultural functions performed by the natural
resources, including the human uses of those functions.
State means the several states of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the
U.S. Virgin Islands, the Commonwealth of Northern Marianas, and any
other territory or possession over which the United States has
jurisdiction.
Technical feasibility or technically feasible means that the
technology necessary to implement an element of the damage assessment
plan or a restoration methodology has a reasonable chance of successful
completion in an acceptable period of time.
Trustee(s) means those officials of the federal and state
governments, of Indian tribes, and of foreign governments designated
according to section 1006(b) of OPA who may present a claim for and
recover damages for injury to natural resources.
Type A procedure means one of the simplified natural resource
damage assessment procedures requiring minimal field observation, found
in subpart D of 43 CFR part 11.
Type B procedure means an alternative procedure for comprehensive
natural resource damage assessments, currently found in subpart E of 43
CFR part 11.
Sec. 990.14 Recovery of damages.
(a) General. In an action filed pursuant to section 1006 of OPA,
the natural resource trustee(s) may recover:
(1) Damages based on injuries occurring from the onset of the
discharge through the recovery period (including monitoring costs),
less any mitigation of those injuries by response actions taken or
anticipated, plus any increase in injuries as a result of response
actions taken or anticipated;
(2) The costs of emergency restoration under Sec. 990.20(g) of this
part; and
(3) The reasonable costs of the assessment, including:
(i) The cost of performing the preassessment, assessment, and post-
assessment phases and procedures provided in this part; and
(ii) Any administrative or legal costs, including base and
incremental costs, incidental to assessment and restoration; and
(4) Interest on the amounts recoverable as provided in section 1005
of OPA.
(b) Statutory limitations on liability. The determination of the
damage amount shall consider any applicable limitations on liability
provided for in section 1004 of OPA.
(c) Double recovery. There shall be no double recovery for damages
as a result of the same discharge, as set forth in section 1006(d)(3)
of OPA.
(d) Parallel assessments. Nothing in this part precludes the
determination of damages for injuries to separate natural resources
and/or services resulting from a single discharge, so long as such
determination does not result in the double recovery of damages.
Therefore, the trustee(s) may conduct parallel assessments, combining
assessment procedures for separate resources and/or services.
(e) Statute of limitations. Actions for damages and assessment
costs shall consider the statute of limitations set forth in section
1017(f) of OPA.
(f) Settlements. The trustee(s) and responsible party(ies) may
settle a claim for natural resource damages at any time following a
discharge of oil. Federal trustees shall seek the approval of the
Department of Justice in the compromise of any claim of the United
States. Subject to prespill restoration plans, the trustee(s) shall
provide for public review of such agreed upon settlements and the
related restoration plans.
(g) Oil Spill Liability Trust Fund. Any excess damages shall be
deposited in the Oil Spill Liability Trust Fund in accordance with
section 1006(f) of OPA.
Sec. 990.15 Administrative record for development of draft assessment/
restoration plans
(a) Purpose. The administrative record has four basic purposes:
(1) Facilitate selection of restoration alternatives by providing a
central repository for scientific data;
(2) Document the trustee's(s') consideration of the relevant
factors in selecting restoration actions;
(3) Facilitate public participation; and
(4) Provide the basis for judicial review.
(b) General. The trustee(s) shall establish an administrative
record upon which the trustee(s) shall base the selection of
restoration alternatives. The restoration plan shall include the
rationale for selection of the alternatives and an estimate of the cost
of implementing the plan.
(c) Content. An administrative record should consider the documents
that form the basis of the selection of the trustee's(s') plan to
restore, rehabilitate, replace, or acquire equivalent resources.
(1) Documents that form the basis of the trustee's(s') selection of
this plan will generally include:
(i) Documents containing factual information, data, or analysis of
the factual information or data, that may form a basis for the
selection of a plan;
(ii) Guidance documents, technical literature, and site-specific
policy memoranda that may form a basis for the selection of a plan;
(iii) Relevant documents that are timely submitted by the RP(s) or
other members of the public; and
(iv) Decision documents such as the Report of Assessment.
(2) Documents that do not form the basis for the selection of a
plan, such as draft documents, internal memoranda, and day-to-day notes
of staff, should not be included in the administrative record, unless
such documents contain information that forms the basis of selection of
the plan and the information is not included in any other document in
the administrative record. Documents relating exclusively to liability
or calculation of compensable values will ordinarily not be included in
the administrative record.
(d) Level of detail. The contents and level of detail of the record
will vary according to the type of procedure selected. Certain types of
information will be common to all assessments, regardless of the type
of procedure selected. However, the volume of material compiled for the
administrative record should be consistent with the scope of the
assessment and restoration.
(e) Supplementing the record. (1) Supplements to the record may be
allowed if the:
(i) Interested party did not receive actual or constructive notice
of the Draft Assessment/Restoration Plan and the opportunity to comment
on the plan;
(ii) Information submitted does not duplicate information already
contained in the administrative record; and
(iii) Information raises sufficiently significant issues regarding
the scope, effectiveness, or cost of the plan as to warrant having the
trustee(s) reconsider the plan.
(2) Where the Draft Assessment/Restoration Plan provides for the
development of certain components at a later date, the information or
documents used to develop these components should be added to the
administrative record as they become available.
(3) Where the Draft Assessment/Restoration Plan is modified, the
public will have the right to review and comment upon modifications
that are, in the opinion of the trustee(s), significant.
(4) Where the Final Restoration Plan of Sec. 990.84 is a result of
significant modifications of the restoration component in the Report of
Assessment, the administrative record should be supplemented with any
additional material or data considered in developing that modification.
(f) Availability of the administrative record. (1) To the extent
practicable, the administrative record should be compiled and made
available for review and comment as documents are generated or received
by the trustee(s). However, the degree of public notice and involvement
in the administrative record should be determined by the trustee(s) on
a case-by-case basis.
(2) The administrative record should be made available for public
review and comment concurrently with the Draft Assessment/Restoration
Plan.
(g) Judicial review. The administrative record shall form the basis
of review of the Report of Assessment in any judicial or administrative
proceeding.
Sec. 990.16 Prespill planning.
(a) Prespill planning. To the extent practicable and in conjunction
with other willing participants where appropriate, the trustee(s)
should conduct the following prespill activities:
(1) Develop a natural resource damage assessment management and
technical team. The size of the team should be a function of the scope
and complexity of the assessment.
(2) Identify outside experts to assist in the design and conduct of
studies, and serve in independent peer review;
(3) Identify support services;
(4) Collect information on natural resources and/or services
potentially affected by discharge of oil along high risk areas;
(5) Identify the potential trustee(s) and a process to designate a
lead administrative trustee (LAT), using guidance in paragraph (b) of
this section at sites that may be affected by discharges of oil;
(6) Identify sources of information for background data;
(7) Design a general approach and develop protocols for an early
sampling program; and
(8) Establish a centralized data management system for natural
resource damage assessment baseline data.
(b) Lead Administrative Trustee. (1) Trustees are encouraged to
cooperate and coordinate any assessment that involves coexisting or
contiguous natural resources or concurrent jurisdiction. They may
arrange to divide responsibility for implementing the assessment in any
manner that is agreed to by all of the affected natural resource
trustees with the following conditions:
(i) A lead administrative trustee should be designated to
administer the assessment. The lead administrative trustee should act
as coordinator and contact regarding all aspects of the assessment. The
lead administrative trustee should be designated by mutual agreement of
all the natural resource trustees.
(ii) If there is a reasonable basis for dividing the assessment,
the natural resource trustees may act independently and pursue separate
assessments, actions, or claims so long as the claims do not overlap.
In these instances, the natural resource trustees should coordinate
their efforts, particularly those concerning the sharing of data and
the development of the Draft Assessment/Restoration Plan (DARP).
(iii) If a natural resource trustee(s) takes action as a result of
a discharge of oil prior to the designation of a lead administrative
trustee, all damage assessment actions performed by that trustee(s)
shall be documented and transmitted to the lead administrative trustee
to avoid duplication of efforts and double counting.
(2) If the discharge affects trust resources of the other natural
resource trustee(s) as a result of coexisting or contiguous natural
resources or concurrent jurisdiction, the trustee(s) may conduct an
assessment pursuant to this rule without designating a lead
administrative trustee. However, if appointed the lead administrative
trustee, conducting an assessment pursuant to this rule, shall ensure
that all other known affected natural resource trustees are notified
that a DARP is being developed. This notification shall include the
results of the Preassessment Phase.
(c) Regional restoration plan. The trustee(s) is encouraged in
prespill planning to develop Regional Restoration Plans. These plans
should be developed, or existing plans modified, through a public
review and comment process consistent with the restoration planning
process described in subpart G of this part.
(d) Trustee memorandum of understanding (MOU). It is strongly
recommended that, to the extent practicable, natural resource trustees,
on some logical geographic or political basis, enter into a Memorandum
of Understanding (MOU) to ensure the coordination and cooperation of
the trustees in the initiation of assessment and assessment of damage
determination for injuries to natural resources and/or services
resulting from a discharge of oil and the application of any natural
resource damages recovered toward the restoration, rehabilitation,
replacement, and/or acquisition of equivalent natural resources.
The MOU is recommended because of the importance of integrating and
coordinating the assessment of natural resource damages for injuries to
natural resources affected by a discharge, seeking compensation for
those injuries to natural resources and/or services, and restoration of
those affected resources and/or services. This MOU should be prepared
either in anticipation of a discharge of oil or as soon as possible
after an actual discharge of oil. A sample MOU is given in Appendix A
of this part.
Sec. 990.17 Participation of the responsible party(ies) RP(s).
(a) General. When practicable, the trustee(s) should seek the
participation of the responsible party(ies) in the natural resource
damage assessment process. Such participation is not mandatory and is
at the discretion of the trustee(s).
(b) Prespill activities. The trustee(s) is encouraged to invite the
participation of the potential responsible party(ies) in prespill
planning activities authorized in Sec. 990.16 of this part. Where
practicable, such prespill planning shall be in connection or
coordination with the development of Area Contingency Plans authorized
under section 4202 of OPA. In their prespill plans, the trustee(s) and
potential responsible party(ies) may consider, but not be limited to,
the following: identification of likely natural resources at risk,
possible protective measures taken in the event of a discharge, and
identification of personnel and agencies likely involved in the event
of a discharge.
(c) Preassessment activities. If deemed practicable by the
trustee(s), the trustee(s) should invite the responsible party(ies) to
participate in the conduct of the Preassessment Phase in accordance
with Sec. 990.20 of this part.
(d) Assessment activities--(1) Offer to participate. Upon
completion of the preassessment and determination by the trustee(s)
under Sec. 990.23 of this part to continue assessment procedures under
subpart F (EDA) or subpart G (CDA) of this part, the trustee(s) should
invite the participation of the identified RP(s) in such assessment
actions. Such offer shall be in writing and will serve as the
notification under Sec. 990.23(c) of this part. The RP(s) shall have
ten calendar days to respond to the trustee's(s') invitation. Sampling
or data collection and emergency restoration that are appropriate and
necessary during the ten-day waiting period may continue. If the RP(s)
has not responded to the trustee(s) in that time, the trustee(s) may
continue activities geared towards the conduct of a solo assessment/
restoration process.
(2) Development of agreement. If the responsible party(ies)
indicates a willingness to participate in further assessment
activities, the trustee(s) and RP(s) shall, in good faith, initiate
negotiations to develop an enforceable agreement considering the
guidance in subsection (f) of this section. However, such negotiations
should not prevent the trustee(s) from conducting assessment activities
during this time period. Such agreement may address all or any part of
the damage assessment and may be conditioned upon the RP(s) agreement
to pay trustee costs. If the trustee(s) and RP(s) cannot reach any
agreement within 45 calendar days from the first day of negotiations,
the trustee(s) may continue activities geared towards a solo
assessment/restoration process.
(3) Draft Assessment/Restoration Plan. The participation of the
responsible party(ies) must be specifically noted in the Draft
Assessment/Restoration Plan developed under subpart C of this part in
order to provide an adequate opportunity for public review.
(e) Restoration activities. The trustee(s) and responsible
party(ies) may agree to participate jointly in restoration activities
identified in the Restoration Plan developed through any of the
assessment procedures identified in this part. In determining whether
to invite the responsible party(ies), the trustee(s) may consider, but
not be limited to, the following factors:
(1) The willingness of the responsible party(ies) to participate in
restoration activities (If the responsible party(ies) has not
participated in earlier phases of the assessment, the trustee(s) may
also consider the reasons for the responsible party(ies) not
participating in those earlier activities.);
(2) The ability (knowledge, expertise, personnel) of the
responsible party(ies) to participate in restoration activities; and
(3) The willingness of the responsible party(ies) to pay for
restoration activities and for trustee costs.
(f) Jointly-conducted phased assessments.
(1) To encourage cooperative assessments, the trustee(s) and
responsible party(ies) are authorized to enter into enforceable
agreements to jointly conduct any assessment activities in steps or
phases. These enforceable agreements should contain, but are not
limited to, the following provisions:
(i) Identification of the step or phase jointly conducted and end
product of enforceable agreement (data collection, data analysis,
etc.);
(ii) Identification of the activities and responsibilities of the
respective parties;
(iii) Conditions for terminating the enforceable agreement;
(iv) Provisions for nonperformance;
(v) Provision that the end product of the enforceable agreement
(data, studies, and other information) will be included in the
administrative record;
(vi) Provisions for funding for the various activities; and
(vii) An agreement that end products of the joint effort cannot be
challenged by either party with collateral data, studies, and other
information, collected outside the joint assessment process.
(2) The trustee(s) and responsible party(ies) should stipulate that
all data, studies, and other information, jointly collected shall be
included in the administrative record at the completion of each
enforceable agreement. The trustee(s) and RP(s) should also stipulate
that each party to the agreement will be barred from introducing new or
different data, studies, or other information collected outside the
joint process to challenge the jointly collected data in either a
judicial or administrative proceeding under OPA.
(3) A sample enforceable agreement is given in appendix B of this
part.
Sec. 990.18 Compliance with other applicable laws and statutes.
(a) Worker human health and safety. All worker human health and
safety considerations specified in the NCP for response actions shall
also apply to the assessment/restoration process.
(b) Resource protection. Before taking any actions under this part,
particularly before taking samples or making determinations of
restoration or replacement, compliance is required with any applicable
statutory consultation or review requirements, including, but not
limited to, the Endangered Species Act; the Migratory Bird Treaty Act;
the Marine Protection, Research, and Sanctuaries Act; and the Marine
Mammal Protection Act, that may govern the taking of samples or in
other ways affect alternative management actions.
(c) State laws. Nothing in this part shall affect, or be construed
or interpreted as preempting, any state or political subdivision
thereof from promulgating natural resource damage assessment
regulations under applicable state or common law. Nothing in this part
shall affect or be construed or interpreted as preempting any state or
political subdivision thereof from the use of their applicable natural
resource damage assessment regulations under applicable state or common
law.
Sec. 990.19 Review of regulations.
NOAA plans to review and revise as appropriate these regulations as
often as necessary, but no less than once every five years.
Subpart B--Preassessment Phase
Sec. 990.20 Preassessment phase--General.
(a) Purpose/Scope. The Preassessment Phase provides for early
action in the case of a discharge of oil through a two-step process
consisting of: Preassessment Determination, to decide whether to
continue with preassessment; and Damage Assessment Determination, to
decide which damage assessment procedure to conduct, if any. This
process is based on limited data collection and analysis. This part
also provides for notification, coordination, estimation of assessment
costs, reporting, and emergency restoration.
(b) Notification. (1) Notification should be consistent with the
NCP. According to the NCP, the OSC or lead response agency generally
provides notification to the natural resource trustee(s) when natural
resources and/or services may be injured by a discharge of oil. If the
trustee(s) learns of an unidentified or unreported discharge of oil,
the trustee(s) shall report that discharge to the appropriate authority
as designated in the NCP.
(2) After learning of a discharge of oil, the trustee(s) should
attempt to notify all other known potential trustees of the possibility
of a natural resource damage assessment. Actions taken by the
trustee(s) shall be consistent with the NCP and this subpart.
(3) In addition, in accordance with section 1011 of OPA, the OSC or
lead response agency shall consult with the affected trustee(s)
concerning removal actions.
(c) Coordination. The trustee(s) should coordinate the
Preassessment Phase with the response agency(ies), as appropriate,
consistent with the NCP and prespill plans developed pursuant to OPA.
To the extent practicable, the Preassessment Phase should also be
coordinated with the trustee(s) whose natural resources and/or services
are affected by the discharge of oil. The trustee(s) may invite the
RP(s) to participate in the Preassessment Phase.
(d) Preassessment Phase costs. (1) Preassessment Phase costs
include and are recoverable only for trustee-approved activities that
deal directly with preassessment. Examples of preassessment costs
include, but are not limited to, costs necessary for: Notification;
coordination; Preassessment Determination; Damage Assessment
Determination; data collection and analysis; report preparation, and
emergency restoration.
(2) Preassessment Phase costs shall not reflect response-related
actions and non-incident specific activities performed by the
trustee(s) in the management of natural resources and/or services.
(3) The costs stipulated in Sec. 990.20 (d)(1) shall be supported
with appropriate and sufficient documentation.
(e) Preassessment Phase Report. At the conclusion of the
Preassessment Phase, the trustee(s) shall prepare a Preassessment Phase
Report documenting all preassessment actions taken, estimated costs
related to those actions, and decisions to proceed with preassessment
and damage assessment/restoration actions. If no additional actions are
undertaken, the Preassessment Report becomes the Report of Assessment.
If the trustee(s) conducts further actions, the Preassessment Phase
Report becomes a part of the Report of Assessment.
Sec. 990.21 Preassessment phase--preassessment determination.
(a) Purpose. Following notification of a discharge of oil, the
trustee(s) shall conduct a Preassessment Determination to decide
whether to continue with the Preassessment Phase.
(b) Scope. The trustee(s) shall gather readily available
information on the nature of the discharge and environmental setting,
i.e., circumstances of the discharge incident, oil characteristics,
nature of the receiving environment, and natural resources and/or
services characteristics.
(c) Conditions. Using such information, the trustee(s) will decide
if the following conditions are met:
(1) The discharge does not qualify for an exclusion under section
1002(c) of OPA;
(2) Trust natural resources, as defined by OPA, and/or services may
be adversely affected by the discharge; and
(3) There is a reasonable probability that the trustee(s) can make
a successful damage claim based on the scientific, economic, and legal
merits of the case, i.e., potential for injury resulting from the
discharge and successful and meaningful restoration and/or
compensation.
(d) Continuing with preassessment. If these conditions are met, the
trustee(s) may continue with the Preassessment Phase. If all conditions
are not met, further preassessment activities should not be conducted.
Sec. 990.22 Preassessment phase--damage assessment determination.
(a) Purpose. Following the decision to proceed with the
Preassessment Phase, the trustee(s) collects data sufficient to decide
which damage assessment procedures to conduct, if any.
(b) Scope. Damage Assessment Determination requires that the
trustee(s):
(1) Characterize the discharge and environmental setting based on
similar but more detailed data collection and analysis efforts
conducted in Preassessment Determination, encompassing circumstances of
the discharge incident, oil characteristics, nature of the receiving
environment, and natural resources and/or services characteristics;
(2) Determine potential exposure based on direct and indirect
exposure or the threat of exposure;
(3) Determine potential injury based on physical, chemical,
biological, or other attributes of the natural resource and/or service;
(4) Characterize the potential risk (probable cause-effect
associations) to natural resources and/or services based on the weight
of evidence and best professional judgment of the information developed
above;
(5) Estimate extent of injury to natural resources and/or services
based on spatial and temporal boundaries; and
(6) Estimate damages based on possible environmental and/or
economic values, likely cost of restoration actions, and all
assessment-related costs.
(c) Additional injury determination studies. If the trustee(s)
determines that no further assessment activities are to be conducted,
but that additional information regarding the discharge may be
beneficial, the trustee(s) with or without the RP(s) may decide to
conduct limited injury determination studies to collect additional
information verifying that no significant injury to natural resources
and/or services has resulted from the discharge. Where no injury is
identified, the costs of such studies are not recoverable under this
subpart and shall be borne by the trustee(s). Should such additional
studies indicate that significant and quantifiable injury has occurred
to natural resources and/or services, the trustee(s) may reinitiate the
Preassessment Phase and the costs are then part of the assessment
costs.
Sec. 990.23 Preassessment phase--damage assessment selection.
(a) Decision on type of assessment. The trustee(s), at his
discretion, may select any of the following assessment procedures at
the completion of the Preassessment Phase:
(1) Compensation Formula;
(2) Type A model;
(3) Expedited Damage Assessment (EDA); or
(4) Comprehensive Damage Assessment (CDA).
(b) Parallel assessments. The trustee(s) may use more than one
procedure for a discharge of oil, provided there is no double counting.
(c) Responsible Party option. The RP(s) may request the trustee(s)
to conduct an EDA or CDA procedure, so long as the costs of that study
are provided by the RP(s) in advance of conducting the procedure.
(d) Estimates. Using the estimates developed in Sec. 990.22(b)(6),
the trustee(s) should select the assessment procedure(s) that is
reasonable. These estimates will necessarily be of a preliminary
nature, subject to change as more information is obtained. The
trustee(s) may select from the procedures identified in subparts D, E,
F, and G of this part.
(e) General considerations. The trustee(s) should examine the
following general considerations for the most appropriate damage
assessment procedure:
(1) The size and nature of the discharge and environmental setting;
(2) The extent to which the discharge of oil is expected to cause
injury to natural resources and/or services;
(3) The expected environmental and/or economic values provided by
those affected natural resources and/or services;
(4) The extent to which response actions carried out or planned
will avoid further injury to natural resources and/or services without
further action;
(5) The extent to which the discharge meets the conditions for
using the selected damage assessment procedures;
(6) The extent to which injury to natural resources and/or services
can be determined with available information and quantification
methods;
(7) The extent to which restoration alternatives can return injured
natural resources and/or services to their baseline or comparable
conditions;
(8) The extent to which damages based upon injury to natural
resources and/or services can be determined with available information
and quantification methods; and
(9) Whether the anticipated damage assessment procedure(s) is cost
effective.
(f) Specific factors. The trustee(s) should consider the following
specific factors in selecting a particular damage assessment procedure.
(1) Compensation formulas. The Compensation Formulas require the
least amount of information concerning the discharge. All information
necessary for the use of the procedures is likely gathered during the
Preassessment Phase. Procedures for conducting the compensation
formulas are found in subpart D of this part. The trustee(s) shall
consider, but not be limited to, the following factors when determining
whether use of the compensation formulas is appropriate:
(i) The amount of the discharge is between 10 gallons and 50,000
gallons, 24 hours after the discharge begins;
(ii) The likely injury and damages resulting from the discharge are
appropriate for calculation using the compensation formulas as
described in either: ``Compensation Formula for Natural Resource Damage
Assessments under OPA: Oil Spills into Estuarine and Marine
Environments, Volumes I-IV'' or ``Compensation Formula for Natural
Resource Damage Assessments under OPA: Oil Spills into Inland
(Freshwater) Waters, Volumes I-III''; and
(iii) The discharge is of the nature where the accurate
quantification of injury and damages would not be cost-effective in the
determination of the trustee(s).
(2) Type A models. Any one of the Type A models found at 43 CFR
part 11 subpart D may be used to determine the damages resulting from a
discharge. Procedures for conducting the Type A models are found in
subpart E of this part. The trustee(s) shall consider, but not be
limited to, the following factors when determining whether use of a
Type A model is appropriate:
(i) The conditions of the discharge are sufficiently similar to the
conditions of 43 CFR 11.33(b);
(ii) The compensation formulas of subpart D of this part are not
sufficient alone to estimate the injury and damages resulting from the
discharge; and
(iii) There is no other cost-effective procedure available to
estimate the injury and damages resulting from the discharge.
(3) Expedited Damage Assessment (EDA). This procedure focuses the
trustee(s) on determining and quantifying injuries to selected natural
resources and/or services. Procedures for conducting an EDA are found
in subpart F of this part. The trustee(s) may determine that the use of
an expedited damage assessment procedure is appropriate after
considering, but not limited to, the following factors:
(i) The use of the compensation formula or Type A model alone may
not sufficiently account for the injury and damages resulting from the
discharge;
(ii) There is readily available information on the nature of the
discharge and its effect on natural resources and/or services;
(iii) The injury and damages resulting from the discharge can be
adequately calculated by conducting limited, focused injury
determination/quantification and compensable values studies as outlined
in subpart F of this part; or
(iv) Potential restoration actions can be implemented without
complex, prolonged injury determination/ quantification and compensable
values studies.
(4) Comprehensive Damage Assessment (CDA). The trustee(s) may
determine that the circumstances of the particular discharge will
require a more lengthy and detailed damage assessment. Procedures for
conducting a CDA are found in subpart G of this part. The trustee(s)
shall consider, but not be limited to, the following factors in
selecting a CDA:
(i) The injury and damages resulting from the discharge can best be
determined through a complex, prolonged process, involving a broad
scope of injury determination/ quantification and compensable values
studies;
(ii) Information concerning the nature of the discharge and its
effects on the natural resources and/or services at risk is not readily
available; and
(iii) Potential restoration actions cannot be determined or
implemented without substantive injury determination/quantification and
compensable values studies.
Sec. 990.24 Preassessment phase--data collection and analysis.
(a) Purpose. The purpose of data collection and analysis (data
collection) in the Preassessment Phase is to ensure that there is
sufficient information to evaluate the risk to natural resources and/or
services resulting from the discharge of oil.
(b) Scope. (1) The trustee(s) may conduct limited data collection
throughout the Preassessment Phase.
(2) Only information on natural resources and/or services that is
related to the discharge, and considered relevant to the assessment
process, restoration alternatives likely to be implemented, and/or
compensable values, should be collected. Such information serves as the
basis for the Assessment Phase.
(3) When practicable, data collection protocols and Quality
Assurance (QA) procedures should follow the guidance provided in
subpart C of this part.
(4) When reasonably practicable, the trustee(s) should collect the
following types of information during the Preassessment Phase:
(i) Data necessary to make a determination to proceed with the
Preassessment Phase;
(ii) Ephemeral or perishable data that may be lost if not collected
immediately; and
(iii) Necessary data that serves as the basis for the selected
damage assessment procedure, the absence of which data would prevent
the trustee(s) from proceeding with damage assessment determination of
Sec. 990.23, i.e., input into the compensation formulas or Type A
models, or the study design for the EDA or CDA.
(5) The trustee(s) is encouraged to collect baseline, reference,
control, or other necessary information to determine the appropriate
assessment procedures to the extent that such information is available
or can be readily determined.
Sec. 990.25 Preassessment phase--emergency restoration.
(a) Purpose. After notification and during response, the
trustee(s), with the approval of the OSC, may undertake emergency
restoration such that it does not interfere with response actions.
Emergency restoration is deemed necessary to restore natural resources
and/or services in those limited situations where the imminent loss of
that resource and/or service may occur before any assessment of injury
and restoration plan could be developed and implemented.
(b) Costs. Any costs associated with emergency restoration may be
claimed as part of the damage claim or as uncompensated claims under
section 1012(a)(4) of OPA.
Subpart C--Draft Assessment/Restoration Plan
Sec. 990.30 Draft assessment/restoration plan--general.
(a) Purpose. The purpose of the Draft Assessment/Restoration Plan
(DARP) is to ensure that the assessment/restoration is performed in a
planned, cost-effective, and systematic manner, and provide for public
review and comment of the restoration plans as required under section
1006 of OPA.
(b) DARP requirement. The trustee(s) shall develop plans for the
assessment of damages and restoration of natural resources and/or
services affected by the discharge. These plans shall be developed in
accordance with the requirements and procedures provided in this
subpart and in subparts D, E, F, and G of this part.
(c) Prespill plans. To the maximum extent practicable, a DARP
developed by the trustee(s) under this subpart shall be consistent with
any applicable prespill plans completed under Sec. 990.16, unless the
trustee(s) justifies and documents the departure from such plans.
(d) Administrative Record, Report of Assessment. The DARP, along
with any significant modifications and associated comments and
responses, shall be placed in the administrative record. The DARP, as
modified after public review, as appropriate, is the basis of the
Report of Assessment.
(e) Plan approval. The trustee(s) shall have final approval as to
the content and development of the DARP.
(f) NEPA compliance. The DARP shall be developed in order to
fulfill applicable NEPA requirements.
Sec. 990.31 Draft assessment/restoration plan--content.
(a) General. (1) The DARP shall address the four major components
of the Assessment Phase, the:
(i) Injury determination component, i.e., results of injury
determination studies, to the extent they are known, with documentation
of those results;
(ii) Injury quantification component, i.e., the results of
quantification studies, to the extent they can be calculated, with
documentation of those results;
(iii) Restoration planning component, i.e., the evaluation,
selection, and estimated cost of planned restoration actions; and
(iv) Compensable values component, i.e., valuation studies
planned, subject to Sec. 990.32(c)(4) of this part, with the results of
those studies if deemed appropriate by the trustee(s).
(2) For CDAs, where there are prolonged (multi-year) plans, the
trustee(s) need not develop all components of the DARP simultaneously,
but may develop annual reports to update the DARP as the assessment
progresses.
(b) DARP information requirements. The DARP should include:
(1) A brief identification of the discharge of concern based upon
information from the Preassessment Phase;
(2) Descriptions of the natural resources and/or services
involved;
(3) A statement of authority for asserting trusteeship, or co-
trusteeship, for those natural resources and/or services considered in
the DARP;
(4) The Preassessment Phase Report; and
(5) Those requirements of each of the assessment procedures,
described in subparts D, E, F, and G of this part, used by the
trustee(s).
(c) Level of detail. The level of detail for each component of the
DARP shall be consistent with what is appropriate for the type of
assessment procedures being conducted.
Sec. 990.32 Draft assessment/restoration plan--development.
(a) Timing of DARP development. (1) Following the development and
trustee approval of the injury determination and quantification
components of the DARP, the trustee(s) should implement those
components of the DARP to the extent practicable.
(2) As data are produced in the injury determination and
quantification components, the trustee(s) should complete the
restoration component and the design of the compensable values
component for the injured natural resources and/or services.
(b) Development requirements for multiple trustees. The trustee(s)
should fulfill the following requirements in developing a DARP for
assessments in which there are multiple trustees:
(1) A lead administrative trustee should be designated to
administer the DARP. The lead administrative trustee should act as
coordinator and contact regarding all aspects of the DARP.
(2) The trustees are encouraged to cooperate and coordinate any
DARP that involves coexisting or contiguous natural resources or
concurrent jurisdiction. They may arrange to divide responsibility for
implementing the components of the assessment in any manner that is
agreed upon by all of the affected natural resource trustees.
(c) Public involvement. (1) Injury determination and quantification
components of the DARP. The trustee(s) shall provide notification of
the selection of the methodologies used to determine and quantify
injury to natural resources and/or services pursuant to the
compensation formula, Type A model, and the EDA. The trustee(s) shall
provide formal public review and comment for the injury determination
and quantification components of the CDA.
(2) Restoration planning component of the DARP. The trustee(s) must
provide for public notice and comment of the restoration planning
component of the DARP. Where there is no Regional Restoration Plan
developed and adopted following public review and comment pursuant to
prespill planning, as described in Sec. 990.16 of this part, the
trustee(s) must provide for public review and comment of the
restoration component of DARPs developed pursuant to the compensation
formula, Type A model, EDA, and CDA. Where a Regional Restoration Plan
has been developed and adopted following public review and comment
pursuant to prespill planning as described in Sec. 990.16 of this part,
the trustee(s) must provide for public notice, review and comment of
the intent to apply one or more recoveries from a compensation formula
or Type A assessment to the Regional Restoration Plan. The trustee(s)
must provide for public review and comment of the restoration
components of DARPs developed pursuant to an EDA or CDA.
(3) The trustee(s) may provide for public notification or review of
the compensable values component of the DARP, subject to
Sec. 990.32(c)(5) of this part.
(4) Public review period. Where the trustee(s) is required to
provide a minimum for public review and comment, the trustee(s) must
provide a minimum of 30 calendar days for public review and comment.
The trustee(s) may grant reasonable extensions for that review.
(5) Exception to public notification, review, and comment. It is at
the discretion of the trustee(s) to provide for notification, review,
and comment of those portions of the DARP concerning the calculation of
compensable values. The trustee(s) may further withhold the description
of studies and methodologies for determining the damages for the
compensable values from public review and comment. Such damages are
still afforded the rebuttable presumption, but may not be eligible for
judicial review on the record.
(6) Method of publication. Notification or publication of a DARP
may be provided in a publication of local, state, regional, or national
circulation, as deemed appropriate to the scope of the assessment/
restoration by the trustee(s).
(d) Modification. (1) The DARP may be modified at any stage of the
assessment/restoration process as new information becomes available.
(2) Any modification to that portion of the DARP that has been the
subject of review and comment that, in the judgment of the trustee(s),
is significant shall be made available for review and comment for a
period of at least 30 calendar days, with reasonable extensions granted
as appropriate, before tasks subject to
FR Doc. 94-225 Natural Resource Damage Assessments
modification are begun.
(3) Any modification to the DARP that in the judgment of the
trustee(s) is not significant may be made available for review at the
discretion of the trustee(s), but the implementation of such
modification need not be delayed as a result of such review.
(e) DARP implementation by RP(s). At the option of the trustee(s)
and if agreed to by any RP(s) acting jointly, the RP(s) or any other
party under the direction, guidance, and monitoring of the trustee(s)
may implement all or any part of the DARP as approved by the
trustee(s). Any decision to involve the RP(s) shall be documented in
the DARP.
Sec. 990.33 Draft assessment/restoration plan--other elements.
(a) Protocols. Selection of specific data collection protocols in
damage assessment is left to the discretion of the trustee(s). In
general, protocols should be applicable to the discharge and
environmental setting, cost-effective, and provide information
consistent with data quality requirements.
(b) Quality Assurance (QA). The trustee(s) may implement or modify
existing, or develop new quality assurance (QA) program and project
plans relative to the requirements and constraints of incident.
(c) Data Management. Where appropriate, the trustee(s) should
develop a data management plan to accommodate the input, uses, needs,
and access for the data.
Subpart D--Compensation Formulas
Sec. 990.40 Compensation formulas--general.
(a) General. Based upon best professional judgment, the trustee(s)
may determine damages as compensation for injury to natural resources
and/or services using the compensation formulas authorized by this
subpart for all or part of the assessment. The formulas may be used by
the trustee(s) for discharges of oil ranging from ten gallons to 50,000
gallons and where the trustee(s) determines that there has not been a
significant loss in passive use values.
(b) Seasons. For the purposes of this subpart, the seasons of the
year are defined as follows:
(1) Winter=January 1 through March 31;
(2) Spring=April 1 through June 30;
(3) Summer=July 1 through September 30; and
(4) Fall=October 1 through December 31.
(c) Incorporation by reference. The following publications are
incorporated by reference:
(1) ``Compensation Formula for Natural Resource Damage Assessments
under OPA: Oil Spills into Estuarine and Marine Environments,'' Volumes
I-IV. Available from DART, Suite 604, 1825 Connecticut Avenue, N.W.,
Washington, DC 20235.
(2) ``Compensation Formula for Natural Resource Damage Assessments
under OPA: Oil Spills into Inland (Freshwater) Waters,'' Volumes I-III.
Available from DART, Suite 604, 1825 Connecticut Avenue, N.W.,
Washington, DC 20235.
(d) Damage claim. (1) The damages include the compensation formula
result plus any damages computed by the trustee(s) due to beach and/or
shoreline closure, plus for inland (freshwater) waters damages due to
lost boating days, plus the reasonable costs of conducting the
assessment. Additional damages determined through other assessment
methods may also be included so long as there has been no double
counting. This damage figure is included in the Report of Assessment
and the Demand under Secs. 990.80 and 990.81 of this part, and is
documented in the administrative record.
(2) Damages calculated using one of the compensation formulas
provided in subpart D of this part are conclusive for the injuries
included in that formula. Judicial review of the demand shall be
limited to the applicability of the formula and the accuracy of any
site-specific input data.
(e) Final Restoration Plan. Based upon the final damages recovered,
the trustee(s) shall develop a restoration component plan, either
implementing restoration actions identified in a prespill Regional
Restoration Plan or as an incident-specific plan as provided by subpart
H of this part.
Sec. 990.41 Compensation formulas--estuarine and marine formula.
(a) Use of estuarine and marine formula. To use the Estuarine and
Marine formula, the trustee(s) must identify:
(1) Whether the discharge occurred in a marine, estuarine,
subtidal, or intertidal area using the definitions given in ``Volume
I--Technical Documentation'' of ``Compensation Formula for Natural
Resource Damage Assessments under OPA; Oil Spills in Estuarine and
Marine Environments;''
(2) Location of discharge, using the boundaries and definitions of
the provinces provided in ``Volume I--Technical Documentation'' of
``Compensation Formula for Natural Resource Damage Assessments under
OPA; Oil Spills in Estuarine and Marine Environments,'' to determine in
which province the discharge occurred;
(3) Habitat type that typifies the habitat affected by the
discharge using definitions provided in ``Volume I--Technical
Documentation'' of ``Compensation Formula for Natural Resource Damage
Assessments under OPA; Oil Spills in Estuarine and Marine
Environments;''
(4) Type of oil discharged as determined by the definitions
provided in ``Volume I--Technical Documentation'' of ``Compensation
Formula for Natural Resource Damage Assessments under OPA: Oil Spills
in Estuarine and Marine Environments;''
(5) Amount discharged. The trustee(s) shall subtract from the total
amount discharged the trustee's(s') estimate of the volume of oil that
is cleaned up within 24 hours from the beginning of the discharge, if
the cleanup is from the water. Cleanup from shorelines shall not be
subtracted;
(6) Season of discharge, as defined in Sec. 990.40 of this subpart;
and
(7) Amount of beach and/or shoreline closed, if any, determined by
linear measure and days closed.
(b) Determining damage figure. The trustee(s) should:
(1) Determine the damages using the estuarine and marine
compensation formula based upon the requirements of this subsection and
``Volumes I through IV--Technical Documentation'' of ``Compensation
Formula for Natural Resource Damage Assessments under OPA; Oil Spills
in Estuarine and Marine Environments;''
(2) Determine the appropriate habitat/province scenario using
``Volume I--Technical Documentation'' of ``Compensation Formula for
Natural Resource Damage Assessments under OPA: Oil Spills in Estuarine
and Marine Environments.'' Locate the table in Appendix A corresponding
to the season discharge and the type of oil discharged using the
scenario and volume discharged, identify the applicable formula.
Compute the damage figure as instructed in ``Volume I--Technical
Documentation'' of ``Compensation Formula for Natural Resource Damage
Assessments under OPA; Oil Spills in Estuarine and Marine
Environments;'' and
(3) Determine damages for beach and/or shoreline closure by
identifying the linear measure of beach and/or shoreline closed, in
accordance with Volume III of the ``Compensation Formula for Natural
Resource Damage Assessments under OPA; Oil Spills in Estuarine and
Marine Environments,'' and multiplying the length by the time period
for which the beach and/or shoreline was closed.
Sec. 990.42 Compensation formulas--inland (freshwater) waters formula.
(a) Use of Inland (Freshwater) formula. To use the Inland
(Freshwater) Waters formula, the trustee(s) must identify:
(1) The appropriate freshwater habitat in which the discharge
occurred, as defined in ``Volume I--Technical Documentation'' of
``Compensation Formula for Natural Resource Damage Assessments under
OPA: Oil Spills into Inland (Freshwater) Waters;''
(2) Location of the discharge, using the boundaries and definitions
of the provinces provided in ``Volume I--Technical Documentation'' of
``Compensation Formula for Natural Resource Damage Assessments under
OPA: Oil Spills into Inland (Freshwater) Waters;'' to determine in
which province the discharge occurred;
(3) Habitat type that typifies the habitat affected by the
discharge using definitions provided in ``Volume I--Technical
Documentation'' of ``Compensation Formula for Natural Resource Damage
Assessments under OPA: Oil Spills into Inland (Freshwater) Waters;''
(4) The type of oil discharged as determined by the definitions
provided in ``Volume I--Technical Documentation'' of ``Compensation
Formula for Natural Resource Damage Assessments under OPA: Oil Spills
into Inland (Freshwater) Waters;''
(5) Amount discharged. For those large water bodies identified in
``Volume I--Technical Documentation'' of ``Compensation Formula for
Natural Resource Damage Assessments under OPA: Oil Spills into Inland
(Freshwater) Waters;'' the trustee(s) may subtract from the total
amount discharged the trustee's(s') estimate of the volume of oil that
is cleaned up within 24 hours from the beginning of the discharge, if
the cleanup is from the water. Cleanup from all other inland
(freshwater) waters and from shorelines shall not be subtracted;
(6) Season of discharge, as defined in Sec. 990.40 of this subpart;
(7) Amount of shoreline and/or beach closed, if any, determined by
linear measure; and
(8) Amount of recreational boating area closed, if any, determined
by square kilometer.
(b) Determining damage figure. The trustee(s) should:
(1) Determine the damages using the Inland (Freshwater) Waters
compensation formula based upon the requirements of this subsection and
``Volumes I through III--Technical Documentation'' of ``Compensation
Formula for Natural Resource Damage Assessments under OPA; Oil Spills
in Inland (Freshwater) Waters;''
(2) Determine the appropriate habitat/province scenario using
``Volume I--Technical Documentation'' of ``Compensation Formula for
Natural Resource Damage Assessments under OPA: Oil Spills in Inland
(Freshwater) Waters.'' Locate the table in Appendix A corresponding to
the season discharge and the type of oil discharged using the scenario
and volume discharged, identify the applicable formula. Compute the
dollar figure as instructed in ``Volume I--Technical Documentation'' of
``Compensation Formula for Natural Resource Damage Assessments under
OPA: Oil Spills into Inland (Freshwater) Waters;''
(3) Determine damages for beach and/or shoreline closure by
identifying the linear measure of beach and/or shoreline closed in
accordance with Volume III of ``Compensation Formula for Natural
Resource Damage Assessments under OPA: Oil Spills into Inland
(Freshwater) Waters,'' and multiplying the length by the time period
for which the beach and/or shoreline was closed; and
(4) Determine damages for lost recreational boating closure by
identifying the square kilometers closed and multiplying by the density
of use and value per day as found in Volume III of ``Compensation
Formula for Natural Resource Damage Assessments under OPA: Oil Spills
into Inland (Freshwater) Waters,'' and the number of days the area was
closed.
Subpart E--Type A Models
Sec. 990.50 Type A models--general.
(a) The trustee(s) may use a computer model for natural resource
damage assessments under OPA.
(b) The trustee(s) shall document the use of a computer model
through the development of the DARP under subpart C of this part.
Sec. 990.51 Type A models--natural resource damage assessment model
for coastal and marine environments, version 1.2.
(a) The trustee(s) may use the Natural Resource Damage Assessment
Model for Coastal and Marine Environments (NRDAM/CME), Version 1.2,
incorporated by reference in 43 CFR 11.18 and 11.41. The trustee(s)
must show that the conditions of the discharge are sufficiently similar
to the conditions of 43 CFR 11.33(b).
(b) The assessment component for application of the NRDAM/CME will
contain the items required in 43 CFR 11.41(c), which are the inputs
required to apply the NRDAM/CME.
(c) Damage claim. The total damage figure includes the result of
the application of the NRDAM/CME plus the reasonable costs of
conducting the assessment. This damage figure is included in the Report
of Assessment and the Demand under Secs. 990.80 and 990.81 of this part
and documented in the administrative record.
(d) Restoration. Based upon the final damages recovered, the
trustee(s) shall develop a restoration component plan, either
implementing restoration actions identified in the prespill plan
developed under Sec. 990.16(a) or as an incident-specific plan under
subpart G of this part.
Subpart F--Expedited Damage Assessment
Sec. 990.60 Expedited damage assessment--general.
(a) Purpose/Scope. The purpose of an EDA is to determine and
quantify injury based on limited, focused studies in order to
facilitate restoration as soon as possible. This subpart provides the
trustee(s) with guidance and procedures for selecting and undertaking
an EDA.
(b) Scope of natural resources and services. The trustee(s) should
focus injury determination and quantification on those resources that
are of commercial, recreational, or ecological importance or of special
significance as deemed by the trustee(s).
(c) Time frame. Where possible, the trustee(s) should complete the
Assessment Phase, including, but not limited to, the development of a
restoration component within two years from the date of the discharge.
This time frame, however, is not mandatory. The trustee(s) need not
complete the Assessment Phase before beginning to prepare the damage
claim, undertake settlement negotiations, if appropriate, provide
public review of the restoration component and finalize the restoration
plan.
(d) EDA costs. EDA costs cover the same categories as those defined
in a CDA, including costs associated with injury determination and
quantification, restoration planning, and compensable values
determination. However, costs associated with injury determination and
quantification should be limited to the focused studies undertaken.
(e) Administrative Record. The trustee(s) should document all
pertinent activities and decisions within the Administrative Record, as
with a CDA.
Sec. 990.61 Expedited damage assessment--selection.
(a) Guidelines. The trustee(s) should examine the various
guidelines in evaluating whether an EDA is appropriate for a given
discharge and exercise best professional judgment in making the final
determination. Factors to be considered by the trustee(s) include, but
are not limited to:
(1) The use of the compensation formulas or Type A models alone
would not sufficiently account for the injury and damages resulting
from the discharge.
(2) There is readily available information on the nature of the
discharge and its effect on natural resources and/or services.
(3) The injury and damages resulting from the discharge can be
adequately calculated by conducting limited, focused injury
determination/quantification and compensable values studies.
(4) Potential restoration actions can be implemented without
complex, prolonged injury determination/quantification and compensable
values studies.
(b) [Reserved].
Sec. 990.62 Expedited damage assessment--objectives and approach.
(a) The objectives of an EDA are to:
(1) expeditiously determine and quantify injuries to selected
natural resources and/or services resulting from a discharge using
limited, focused studies and baseline or reference/control information,
and
(2) Provide the basis for restoration and recovery of natural
resources and/or services.
(b) To achieve these objectives, the EDA procedure consists of: (1)
Injury determination; (2) Injury quantification; (3) Restoration; and
(4) Compensable values.
Sec. 990.63 Expedited damage assessment--injury determination.
(a) General. Injury resulting from (or caused by) a discharge of
oil has been determined when the trustee(s) has demonstrated that:
(1) With direct exposure,
(i) The natural resource was exposed;
(ii) There is a pathway between the discharge and exposed natural
resource; and
(iii) The exposure of oil, its components, or by-products has been
shown by rigorous and appropriate scientific methodology to have an
adverse effect on the natural resource in laboratory experiments or the
field; or
(2) In the absence of direct exposure,
(i) The adverse effect on or impaired/diminished use of a natural
resource has been shown by rigorous and appropriate scientific
methodology; and
(ii) The adverse effect on or impaired/diminished use of the
natural resource would not have occurred but for the fact of the
discharge or threat of a discharge. The trustee(s) should establish
baseline or reference/control conditions from which changes in
environmental and biological parameters may be measured.
(b) Contributing factor. Where multiple factors may have
contributed to an indivisible injury to a natural resource and/or
service, the discharge of oil may be considered a contributing factor
to the injury.
(c) Exposure. The trustee(s) shall confirm that at least one of the
natural resources and/or services identified as potentially injured in
the Preassessment Phase has been exposed or threatened to be exposed to
the oil. To confirm exposure, the trustee(s) should determine that:
(1) The natural resource was exposed to the discharge; and
(2) There is a pathway between the discharge and the exposed
natural resource.
(d) Identify natural resources and services. The trustee(s) should
identify those natural resources and services for which injury
determination and quantification will be conducted. Eligible natural
resources will include those that are of recreational, commercial, or
ecological importance, or of special significance.
(e) Initiate early restoration planning. The trustee(s) should
begin the restoration planning process by developing a restoration
Scoping Statement to identify potential restoration alternatives to
remedy the effects of the discharge of oil. In undertaking restoration
planning for an EDA, the trustee(s) should refer to Secs. 990.73,
990.74, 990.75 and subpart G to supplement the guidance provided in
this section.
(f) Scope of injuries. Injuries to natural resources and/or
services for which the trustee(s) may claim damages will, by
definition, be limited relative to a CDA, and may include, but not
limited to, mortality, sublethal effects, and lost or diminished
services. Categories of injury which meet the acceptance criteria
specified in Sec. 990.71(e) and which are appropriate to the EDA are
currently being developed.
(1) Mortality. (i) The trustee(s) may derive estimates of acute
mortality to fish and wildlife resources from body counts in the
affected area in accordance with acceptable procedures such as the
American Fisheries Society Fish-Kill Investigations (See PART II of
``Monetary Values of Freshwater Fish and Fish-Kill Counting
Guidelines,'' American fisheries Society Special Publication Number 13,
1992). In addition, the trustee(s) may determine acute mortality using
standard, laboratory toxicity testing or acceptable models.
(ii) Where appropriate, the trustee(s) shall identify direct
mortality of the flora resulting from the oil. Surveys may be employed
to estimate both initial and delayed mortality.
(iii) The trustee(s) may estimate indirect mortality such as
starvation, failure to nest, and hatching failure, loss of critical
habitat from the existing literature or from limited, focused studies.
(2) Sublethal effects. The trustee(s) should identify sublethal
effects that the trustee(s) deems significant and that can be
documented with limited, focused studies. Sublethal effects may
include, but are not limited to, reproductive impairment, reduction in
growth rates of the flora and/or fauna, and changes in species
diversity and abundance utilizing the habitat.
(3) Services. The trustee(s) should determine injury to services.
(i) The trustee(s) should inventory all services provided by the
resource prior to the discharge and identify those lost or diminished,
or expected to be lost or diminished. Services that may be considered
for an EDA include, but are not limited to, recreational, commercial,
ecological, and those of special significance.
(ii) The trustee(s) should determine whether there are adequate
baseline data to support the calculation of lost or diminished
services.
Sec. 990.64 Expedited damage assessment injury quantification.
(a) General. The trustee(s) should quantify injuries to natural
resources and/or services identified through injury determination. The
trustee(s) should also establish the extent of the lost or diminished
services. Quantification of natural resources and/or services can be
accomplished through before-after (using baseline data) or reference/
control-impact study designs, using combined (at the community/
population level) and/or individual (at the organism/biomarker effects
level) injuries.
By definition, EDA quantification will be scaled down relative to the
CDA.
(b) Develop Restoration Component. The trustee(s) shall develop the
restoration component pursuant to the guidance in Secs. 990.73-990.76
of this part.
(c) Compensable Values Component.
(1) The trustee(s) should develop the compensable value component
by:
(i) Determining the lost services associated with the restoration
components;
(ii) Identifying the appropriate measurement methods to estimate
the compensable values of those services; and
(iii) Implementing these methods.
(2) Estimating compensable values may be based on site-specific
analysis, provided such analysis falls within the trustee's(s') general
time parameters prescribed by the EDA. Assignment of compensable values
may also be based on estimates, equations, models, or data from
existing valuation studies through the use of benefits transfer.
(3) The trustee(s) should follow the guidance in Secs. 990.77-
990.79 of subpart G in developing the compensable values component of
an EDA.
Subpart G--Comprehensive Damage Assessment (CDA)
Sec. 990.70 Comprehensive damage assessment--general.
(a) Purpose/Scope. The purposes of the CDA are to:
(1) Comprehensively determine the nature and extent of injury to
natural resources and/or services;
(2) Develop a restoration plan to remedy that injury; and
(3) Determine the total compensable values for discharges requiring
a complex, prolonged assessment/restoration process as deemed necessary
by the trustee(s). The CDA consists of Injury Determination, Injury
Quantification, Restoration, and Compensable Values.
(b) CDA costs. CDA costs include those costs associated with injury
determination and quantification, restoration planning, and compensable
values determination. Costs incurred should be limited to those the
trustee(s) considers necessary.
(c) Administrative Record. The trustee(s) should document all
pertinent activities and decisions within the Administrative Record.
The Administrative Record should provide the rationale for conclusions
regarding each component of the CDA process.
Sec. 990.71 Comprehensive damage assessment--injury determination.
(a) Purpose/Scope. (1) The purpose of injury determination in a CDA
is to verify or modify the nature of the injury to natural resources
and/or services resulting from the discharge of oil.
(2) Injury determination in a CDA should be made for natural
resources and/or services that can be restored or for which the public
can be compensated.
(3) Should the trustee(s) be able to document the nature of the
injury to the natural resources and/or services resulting from the
discharge of oil, he should then proceed to Injury Quantification. If
the trustee(s) is unable to determine the nature of the injury to the
natural resources and/or services resulting from the discharge, further
assessment efforts should be terminated and the results of the Injury
Determination documented in the Report of Assessment.
(b) Objectives and study designs. The trustee(s) should develop
objectives governing the overall CDA and for the individual component
studies. The trustee(s) should also develop individual study designs to
serve as the framework for the CDA.
(c) Injury determination. Once the individual study designs are
complete, the trustee(s) should then document the nature of the injury
resulting from the discharge of oil. Injury resulting from (or caused
by) a discharge of oil has been determined when the trustee(s) has
demonstrated that:
(1) With direct exposure,
(i) The natural resource was exposed;
(ii) There is a pathway between the discharge and exposed natural
resource; and
(iii) The exposure of oil, its components, or by-products has been
shown by rigorous and appropriate scientific methodology to have an
adverse effect on the natural resource in laboratory experiments or the
field; or
(2) In the absence of direct exposure,
(i) The adverse effect on or impaired/diminished use of a natural
resource has been shown by rigorous and appropriate scientific
methodology; and
(ii) The adverse effect on or impaired/diminished use of the
natural resource would not have occurred but for the fact of the
discharge or threat of a discharge.
(d) Contributing factor. Where multiple factors may have
contributed to an indivisible injury to a natural resource and/or
service, the discharge of oil may be considered a contributing factor
to the injury.
(e) Injury criteria. The method for determining injury should be
chosen based on the capability of the method to demonstrate an effect
on or impaired/diminished use of a natural resource. For any injury to
be considered such under this proposed rule, the trustee(s) must
satisfy the following acceptance criteria:
(1) For natural resources,
(i) The exposure to oil, its components, or by-products has been
demonstrated to cause an adverse effect on the natural resource in
laboratory experiments or the field; and
(ii) The measurement for a natural resource adverse effect is cost-
effective and can be obtained through the application of a
scientifically rigorous and appropriate methodology.
(2) For resource services,
(i) The use of a natural resource has been demonstrated to be
impaired/diminished; and
(ii) The measurement for impaired/diminished use is cost-effective
and can be obtained through the application of a scientifically
rigorous and appropriate methodology.
(f) Categories of injury. Categories of natural resource and/or
service injury for the CDA (as well as the EDA) that meet the
acceptance criteria specified in (e) for discharges of oil are
currently being developed.
Sec. 990.72 Comprehensive damage assessment--injury quantification.
(a) Purpose/Scope. (1) The purpose of injury quantification is to
determine the extent of effects on natural resources and/or services
resulting from the discharge as defined in the proposed rule.
(2) The trustee(s) has the option to measure the change in the
natural resource itself, or directly in the services. The trustee(s) is
encouraged to use whichever approach proves to be most appropriate for
the natural resources and/or services being considered.
(3) Should the trustee(s) be able to quantify injury to natural
resources and/or services resulting from the discharge of oil, the
trustee(s) should then proceed to the restoration component. If the
trustee(s) is unable to quantify injury, further assessment efforts
should be terminated and the results of the injury quantification
documented in the Report of Assessment.
(b) Quantification of injury. (1) For quantifying injury to natural
resources, the trustee(s) may quantify the injury to the natural
resources themselves and translate that injury to the reduction in
services provided by the resources prior to the discharge.
(2) For quantifying injury to services where there are insufficient
data to quantify a natural resource injury or where there is no
associated injured natural resource, the trustee(s) may directly
quantify the reduction in the services resulting from the discharge.
(3) If the trustee(s) chooses to quantify the natural resource
injury, the trustee(s) should determine the:
(i) Extent to which the natural resource injuries have occurred;
(ii) Extent to which the injured natural resources differ from
baseline or reference/control conditions;
(iii) Services normally provided by the injured natural resources;
and
(iv) Reduction of services resulting from the discharge of oil.
(4) To quantify the injury to services, the trustee(s) should
determine the:
(i) Extent of impaired/diminished services; and
(ii) Extent to which the level of impaired/diminished services
differs from baseline and/or reference/control conditions.
(c) Quantification methods. (1) Specific natural resources and/or
services to quantify should be selected based upon the: extent to which
a particular natural resource and/or service is affected; extent to
which a given natural resource and/or service can be used to represent
a broad range of related resources and/or services; consistency of the
quantification method with the requirements of the compensable values
determination component to be used; ability to quantify changes in a
given natural resource and/or service at reasonable cost; and
preliminary estimates of services.
(2) The trustee(s) should consider before-after (using baseline
data) or reference/control-impact study designs, using combined (at the
community/population level) and/or individual (at the organism/
biomarker effects level) injuries. Quantification methods appropriate
to a CDA are currently being developed.
(d) Recovery. The trustee(s) should estimate the time necessary for
natural recovery without restoration efforts and beyond response
activities. Recovery is defined as a return of natural resources and/or
services to baseline or comparable conditions within the limits of
natural or other (human-induced) variability.
Sec. 990.73 Comprehensive damage assessment--restoration/general.
(a) Purpose. The purposes of the restoration planning process are
to:
(1) Determine the most appropriate restoration alternatives for the
recovery of natural resources and/or services resulting from a
discharge of oil; and
(2) Estimate the costs of implementing restoration.
(b) Restoration component. The restoration component outlines the
most appropriate approach to bring about the recovery of the natural
resources and/or services to baseline or comparable conditions based
upon a consideration of available alternatives.
(c) Coordination. Where multiple trustees are involved,
coordination and responsibilities may be facilitated through a
Memorandum of Understanding (Appendix A). Participation of the RP(s) in
the restoration process is encouraged, as described in Sec. 990.17 of
this part, and should be identified in the restoration component. The
trustee(s), however, has the ultimate responsibility for all
restoration activities. A joint enforceable agreement or Memorandum of
Agreement (Appendix B) should be considered between the trustee(s) and
RP(s) where the RP(s) is involved.
(d) Emergency restoration. Consistent with Sec. 990.25, emergency
restoration prior to the development of an incident-specific
restoration plan is permitted where immediate action is necessary to
avoid irreversible loss, or to prevent or reduce continuing danger to
natural resources and/or services.
(e) Restoration costs. Costs of restoration will include direct and
indirect costs. These costs will be one component of the total damage
figure.
Sec. 990.74 Comprehensive damage assessment--restoration component
development.
(a) Requirements. In developing the restoration component for a
CDA, the trustee(s) should:
(1) Develop a restoration Scoping Statement;
(2) Develop the restoration component of the DARP; and
(3) Estimate the costs of implementing the restoration component.
(b) Restoration scoping statement. (1) The trustee(s) should
develop a restoration Scoping Statement to identify those restoration
alternatives that the trustee(s) may consider as potential actions to
remedy the effects of the discharge of oil.
(2) The Scoping Statement should:
(i) Include a summary of the natural resources and/or services of
concern, an evaluation of the circumstances of the discharge, and the
expected injured natural resources and/or services;
(ii) Identify the range of restoration alternatives available to
the trustee(s); and
(iii) Identify the opportunity to pool the recovery with other
similar recoveries in a given region for a more encompassing
restoration plan.
(3) The Scoping Statement should be included in the administrative
record.
(4) If prespill plans have been developed that encompass the
injured natural resources and/or services, the trustee(s) may decide
that a Scoping Statement is not needed.
(c) Restoration component of the DARP.
(1) The restoration component of the DARP should be based on the
Scoping Statement and injury determination/ quantification studies, and
will serve as the basis of the Post-assessment Restoration Plan.
(2) The restoration component of the DARP should:
(i) Include an analysis of the restoration alternatives considered
for each natural resource and/or service, and provide the basis for
estimating the restoration costs associated with each alternative;
(ii) Identify the preferred restoration approach for each injured
natural resource and/or service; and
(iii) Include the results of any feasibility or pilot studies.
(3) The restoration component of the DARP should analyze
opportunities for pooling recoveries from multiple cases and identify
other statutory review and consultation requirements.
(4) The restoration component of the DARP, including any
significant changes, will be made available pursuant to Sec. 990.32(c)
of this part.
(d) Estimate restoration costs. (1) Once the restoration component
is chosen, the trustee(s) must estimate the costs of planning,
developing, and implementing that component. These costs shall include
both direct and indirect costs.
(2) Direct costs are those that are identified by the trustee(s) as
charged directly to the conduct of the selected restoration
alternative. Direct costs would include trustee agency expenses for a
specific action(s).
(3) Indirect costs are costs associated with a particular action
for restoration, rehabilitation, replacement, and/or acquisition of
equivalent natural resources and/or services where there is no direct
way to calculate or attribute them to a particular action(s).
(4) Compensation for indirect costs can be included in the damage
claim in one of two ways. The trustee(s) could either identify indirect
costs or claim a certain indirect cost rate for expenses.
(5) Restoration component of the damage claim. The estimated
restoration costs make up that component of the damage claim
representing the costs to restore, replace, rehabilitate, or acquire
the equivalent of the injured natural resources and/or services. These
estimates are to be documented in the administrative record.
(e) Phased Restoration Planning. NOAA recommends that the
trustee(s) should consider undertaking restoration planning in phases.
Phased planning and implementation is proposed through an Adaptive
Management Approach (AMA). AMA involves a process whereby alternatives
can be suggested and tested (i.e., pilot projects) often in small scale
before undertaking full scale restoration. Results of initial
experiments are then evaluated to select the approach for later
projects.
Sec. 990.75 Comprehensive damage assessment--analysis and selection of
restoration alternatives.
(a) Restoration alternatives. In developing the restoration
component, the trustee(s) should consider the following alternatives.
Each alternative may be implemented through one or more options or
methods selected by the trustee(s). When mentioned, alternatives imply
associated options.
(1) The natural recovery (no-action) alternative should always be
considered. Natural recovery may be selected when:
(i) There is evidence that the natural recovery process will be
more effective than other available restoration alternatives;
(ii) The resulting natural resources and/or services are predicted
to resemble the original, within the constraints of natural or other
(i.e., human-induced) variability, in a time frame not significantly
different from that resulting from human intervention;
(iii) Other natural resources and/or services will not be adversely
affected prior to the recovery of those originally injured resources
and/or services; and
(iv) There are no threats to human health and safety from the
length of time for natural recovery.
(2) The restoration alternative, i.e., direct restoration, includes
actions undertaken to return injured natural resources and/or services
to their baseline conditions.
(3) The rehabilitation alternative includes actions to bring
resources and/or services to a state different from baseline conditions
but still beneficial to the environment and public.
(4) The replacement alternative includes actions that substitute a
natural resource and/or service that provides the same or comparable
resources and/or services as those injured.
(5) The acquisition of equivalent natural resources alternative
includes obtaining natural resources and/or services that the
trustee(s) determines are comparable to those injured. Equivalent
natural resources should be acquired to hasten recovery, and protect
and maintain the natural resources affected by the discharge.
(6) Each alternative discussed above may be considered individually
or combined in various ways, depending upon the factors outlined in
Sec. 990.75(b).
(b) Analysis of restoration alternatives. As the results of the
injury and quantification studies become available, the trustee(s)
should revise the list of restoration alternatives developed. The
trustee(s) should analyze each alternative taking into account the
feasibility, environmental effectiveness, and relative cost described
below. If an alternative is unacceptable, it will be eliminated from
further consideration. The rationale for this determination must be
documented in the administrative record.
(1) Feasibility is determined upon, but not limited to, the
following factors: availability of services, materials and equipment;
expertise; construction and operational limitations; need or capability
of future restoration; and administrative, legal, or regulatory
requirements. The trustee(s) should consider technically feasible
methods, i.e., those methods that are currently available.
(2) Once the trustee(s) determines that a restoration alternative
is feasible, the trustee(s) should then evaluate the environmental
effectiveness of the alternative. Effectiveness addresses whether an
action accomplishes the goals and objectives of restoration.
Effectiveness is dependent upon the:
(i) Extent to which the proposed alternative can return natural
resources and/or services to acceptable conditions;
(ii) Extent to which the proposed alternative causes additional
injury;
(iii) Extent to which the proposed alternative improves the rate of
recovery and success; and
(iv) Level of risk and uncertainty in the success of the proposed
alternative.
(3) Simultaneous with environmental effectiveness determination,
the trustee(s) should evaluate the expected cost of implementing the
alternative relative to other alternatives and its expected benefits.
The trustee(s) should consider, among other things:
(i) Significance of the natural resource and/or service to the
environment and public;
(ii) Extent to which the alternative benefits more than one
resource and/or service;
(iii) Cost of the alternative;
(iv) Relationship of the expected costs to the expected benefits;
and
(v) Level of risk and uncertainty in the cost-benefit analysis.
For alternatives that achieve similar benefits and meet the goals
and objectives of restoration, the most cost-effective alternative
should be chosen. In the event that value estimates are not available,
the alternative will be judged on the basis of the increase in the rate
of recovery time relative to the costs of the alternative.
(c) Selection of restoration alternatives. Based upon the analysis
of the restoration alternatives for each category of injured natural
resource and/or service, the trustee(s) should select the alternative
or some combination thereof that best meets the needs of each injured
natural resource and/or service. The trustee(s) should then develop the
restoration component of the DARP based upon this selection for each
natural resource and/or service.
(d) Feasibility (pilot) studies. (1) If restoration alternatives
for certain natural resources and/or services are limited or poorly
developed, the trustee(s) may implement small-scale feasibility or
pilot studies. The costs associated with these actions are recoverable
under this proposed rule.
(2) The trustee(s) should coordinate with the OSC prior to
proceeding with any feasibility or pilot studies during the
Preassessment Phase to ensure that such studies are not incompatible
with response activities. The RP(s) may be given the opportunity to
participate in such studies, if appropriate.
Sec. 990.76 Comprehensive damage assessment--evaluation of
restoration.
(a) Recovery and success. The trustee(s) should define restoration
goals, select appropriate criteria for monitoring goal achievement,
identify performance standards (endpoints), and measure levels of
achievement of those standards in determining recovery and success in
restoration.
(b) Monitoring. The trustee(s) should evaluate recovery through
effective monitoring until recovery is attained without human
intervention. To enable the trustee(s) to accomplish this goal:
(1) Monitoring should be sufficiently long to ensure recovery to a
stable condition;
(2) All relevant components of the affected environment should be
monitored (as it relates to the restoration alternative);
(3) The progress of recovery should be compared with natural
changes occurring in similar unaffected reference or control areas;
(4) Sampling should be designed to provide statistically
significant and defensible results; and
(5) The monitoring plan should be sufficiently flexible to permit
mid-course corrections if the need arises.
(c) Mid-course corrections. Restoration components should
incorporate provisions allowing for necessary mid-course corrections.
Mid-course corrections should be based upon, but limited to, the:
(1) Nature and extent of the injured natural resources and/or
services;
(2) Actual effectiveness of the restoration alternatives; and
(3) Results of monitoring.
Sec. 990.77 Comprehensive damage assessment--compensable values.
(a) Purpose. Section 1006(f) of OPA authorizes the trustee(s) to
recover: The cost of restoring, rehabilitating, replacing or acquiring
the equivalent of the injured or lost natural resources and/or
services; the diminution in value of the injured or lost natural
resources pending restoration; plus the reasonable cost of assessing
those damages. The purpose of this subpart is to provide guidance to
the trustee(s) for estimating the total diminution in value of
resources and/or services affected by the discharge, hereinafter
referred to as compensable values.
(b) Requirement. The trustee(s) shall determine the compensable
values resulting from the discharge of oil based upon the information
collected during the assessment/restoration process and the guidance
provided in this subpart.
(c) Services. Before estimating compensable values under this
subpart, the trustee(s) should determine the uses of the resources
identified in the Injury Quantification component.
(d) Time period of losses. Compensable values include, for each
affected resource and/or service, the diminution in value of the
resource and/or service from the onset of the discharge through the
estimated time of full recovery to baseline or comparable conditions,
as determined by the trustee(s). As identified in subpart G of this
part, to the extent possible, restoration actions will be designed to
yield full recovery of the resources and/or services; however, in some
cases, only partial recovery may occur. If the resources and/or
services will not fully recover with the implementation of the
Restoration Plan, the calculation of compensable values will include
the value of a perpetual stream of lost services.
(e) Completion of the Compensable Values Component. Upon completion
of the valuation component, the results shall be briefly described in
the Report of Assessment. Those results, combined with the restoration
costs and costs of conducting the assessment, shall comprise the
trustee(s) damage claim.
(f) Compensable values are the total diminution in value of the
injured natural resource(s) and/or services as a result of a discharge,
from the onset of the discharge until recovery to baseline or
comparable conditions is deemed complete by the trustee(s).
(g) Compensable values include:
(1) Direct use value, i.e., the value individuals derive from
direct use of a natural resource, including consumptive and
nonconsumptive uses, and
(2) Passive use value, i.e., the value individuals place on natural
resources that is not linked to direct use of a natural resource by the
individual, including the value of knowing the natural resource is
available for use of family, friends, or the general public; the value
derived from protecting the natural resource for its own sake; and the
value of knowing that future generations will be able to use the
natural resource.
(h) Compensable values include, but are not limited to:
(1) The value of losses to all public uses of natural resources as
measured by changes in:
(i) Monetized measures in utility, or consumer surplus,
(ii) Fees or other payments collectable by the government or an
Indian tribe for use of the natural resource by a private party, and
(iii) Any economic rent accruing to a private party because the
government or Indian tribe does not charge a fee or price for the use
of the resource, provided such economic rent is not recovered under a
private cause of action; and
(2) In instances where the natural resource 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.
(i) Compensable values do not include:
(1) Taxes forgone, because these are transfer payments from
individuals to the government;
(2) Wages and other income lost by private individuals, except for
that portion of income that represents uncollected economic rent,
because these values do not accrue to the trustee(s) and may be the
subject of lawsuits brought by the individuals suffering the loss; or
(3) Any speculative losses.
Sec. 990.78 Comprehensive damage assessment--compensable values,
measurement techniques.
(a) General. (1) The methodologies listed in this subpart, or other
appropriate methodologies selected by the trustee(s), shall be used to
estimate compensable values. The trustee(s) should select only those
methods that can provide valid and reliable resource values and that
are appropriate for valuing the injuries associated with a particular
discharge.
(2) Nothing in this part precludes the use of different
methodologies to produce separate damage estimates for different
resource services, so long as there is no double counting.
(b) Site-specific valuation techniques. (1) Travel cost method. The
travel cost method may be used to estimate the value of recreational
services provided by a specific site based on information on the number
and costs of recreational visits to that site. The value of
recreational losses resulting from injury to an area (which may include
multiple sites) is measured as the difference between the values of
recreational services provided by the area with and without the
discharge of oil.
(2) Factor income method. If a lost or injured resource and/or
service is an input to a production process, the factor income
methodology may be used. This methodology may be used to estimate the
change in economic rent attributable to the injured natural resource as
a result of the discharge. When the price of the good being produced is
not affected by the injuries, the change in economic rent is simply the
sum of the changes in factor costs for each affected input.
(3) Hedonic price model. The hedonic price model relates the price
of a marketed commodity, such as property, to its attributes, such as
the quality of the surrounding environment or access to environmental
amenities. Where nonmarket services provided by public trust resources,
such as local water or air quality, function as attributes of private
property or other market goods, the hedonic price model may be used to
determine the value of the change in services for property owners.
(4) Market models of supply and demand. (i) For natural resources
that are traded in markets, the trustee(s) may estimate models of
market supply and demand for the natural resource. The measure of
damages to consumers of the marketed natural resource or of its
marketed services is the difference between the total consumer surplus
for the marketed natural resource/service with and without injury.
(ii) When the supply of the natural resource is fixed (or quasi-
fixed), then the observed or appraised change in market price may be
used as a proxy for damages per unit of affected natural resource or of
affected service. The measure of damages to consumers of the marketed
services is the sum of difference between the without- and with-injury
market or appraisal prices for each affected unit. When the appraisal
method is employed, damages should be measured, to the extent possible,
in accordance with the applicable sections of the ``Uniform Appraisal
Standards for Federal Land Acquisition,'' Uniform Appraisal Standards,
Interagency Land Acquisition Conference, Washington, DC, 1973.
(5) Contingent valuation method. The trustee(s) may use the
contingent valuation method to determine individuals' valuation of
natural resources or of the services provided by natural resources in
order to estimate compensable values. When using contingent valuation
pursuant to this part, the trustee(s) shall adhere to the following:
(i) Survey instrument design and development--(A) Willingness to
pay for Prevention or Restoration.
(1) The survey instrument shall elicit from respondents their
willingness-to-pay (WTP) either to prevent described injuries to
natural resources or to restore injured resources as described to their
baseline or comparable condition.
(2) The trustee(s) shall document the rationale for selecting a
prevention program or restoration program as the commodity to be
valued.
(B) Commodity definition. (1) During development of the survey, the
trustee(s) shall determine whether respondents understood and found
credible the description of the injuries (including whether they are
permanent or interim losses) and the program (including the timing of
the process) for preventing injuries or restoring the natural resource.
(2) Prior to the value elicitation, the trustee(s) shall identify
the natural resource context of the injured resources, if related
resources exist, including commodities that might serve as substitutes.
(C) Budget constraints. Prior to the value elicitation, respondents
shall be reminded of their budget constraints and their alternative
expenditure possibilities. Respondents shall be reminded that their WTP
for the environmental program in question would reduce their
expenditures on other goods. This reminder should be more than
perfunctory but less than overwhelming. The goal is to induce
respondents to keep in mind other likely expenditures, including those
on other environmental goods, when evaluating the main scenario. After
the value elicitation, respondents shall be reminded again of their
alternative expenditure possibilities. Respondents shall be given an
opportunity to reconsider and change their votes (bid) after this
second reminder of alternative expenditure possibilities.
(D) Comparability with real transactions. (1) The survey instrument
shall use a credible choice mechanism and payment vehicle.
(2) The trustee(s) shall select a choice mechanism that is
incentive compatible and shall document the rationale for the selected
choice mechanism.
(3) The trustee(s) shall ask follow-up questions to determine
whether the respondents accepted the choice mechanism and payment
vehicle as credible.
(4) The survey instrument or analysis method shall provide a
mechanism for calibrating hypothetical WTP to actual WTP. The
trustee(s) shall document the rationale for the selected calibration
mechanism. If the survey instrument or analysis method fails to provide
such a mechanism or the trustee(s) fails to document the rationale for
the selected calibration mechanism, actual WTP shall be presumed to be
one-half of stated WTP.
(E) Pretesting. (1) Survey development shall include adequate field
testing to ensure that the above design criteria are met.
(ii) Survey administration--(A) Sampling procedures. (1) The
trustee(s) shall determine the relevant population(s) to be sampled and
document the rationale for that determination.
(2) The trustee(s) shall draw a probability sample(s) from the
target population for the administration of the final survey. Less
rigorous sampling is suitable for pretesting and pilot surveys so long
as the heterogeneity of the target population is considered.
(3) The sample size(s) shall be sufficient to draw statistically
significant population inferences and to estimate WTP valuation
functions or to test relevant statistical hypotheses.
(4) The trustee(s) shall minimize nonresponse bias to the extent
practicable by striving for as high a response rate in the final survey
as possible, consistent with the requirements of reasonable cost. In no
case shall the response rate be less than seventy percent.
(5) The trustee(s) shall document the rationale for the selected
response rate.
(B) Mode of administration. (1) The trustee(s) shall document the
rationale for the selected mode of survey administration.
(2) If interviewers are used, the survey administration shall be
conducted by trained interviewers who are supervised by experienced
interviewer field managers.
(3) Regardless of the mode of administration, the trustee(s) shall
use an experienced survey research organization to administer the
survey.
(C) Confidentiality. The trustee(s) should ensure respondent
confidentiality.
(iii) Nature of results--(A) Scope test. Controlling for
attitudinal, demographic, perceptual, and other differences across
respondents, the trustee(s) shall demonstrate statistically that the
aggregate WTP across all respondents for the prevention or restoration
program increases (decreases) as the scope of the environmental insult
is expanded (contracted). The scope of the environmental insult is
characterized by the severity of the natural resource injuries and the
level of effectiveness and timing of the restoration or prevention
program. The demonstration shall be conducted through the use of split
samples.
(B) Number of scenarios. The trustee(s) shall administer to split
samples different survey instruments containing three variations of the
scope of the environmental insult that respondents perceive as
different unless the trustee(s) can provide a reasonable showing that
the three-scenario test is infeasible due to considerations of cost or
lack of plausibility of scenarios. Where three scenarios are feasible,
the statistical test shall involve pairwise comparisons. In either
case, the scenarios may vary along any of the margins of intensity,
geography, and duration of damage and, for prevention scenarios, the
probability of an event occurring. The trustee(s) shall document the
rationale for the selected variations of the scope of the environmental
insult. In determining the descriptions to be used with the split
samples, the trustee(s) shall use realistic injury scenarios and
prevention or restoration programs that the respondents accept as
credible.
(C) Maximum amount of difference between scenarios. The trustee(s)
shall develop scenarios for the total value test. Prior to the
performance of the test, the trustee(s) shall demonstrate that not more
than ninety-five percent of respondents in a pre-test or in focus
groups indicate that there are meaningful value differences between the
scenarios to be tested in any pairwise comparison. The demonstration
shall be based on a minimum of sixty valid responses. The trustee(s)
shall exclude from this demonstration any individuals who indicate in
screening questions that they are not willing to pay anything for any
size environmental cleanup or who would be willing to pay
unrealistically large and invariant amounts for any size environmental
cleanup.
(iv) Reporting. The trustee(s) shall ensure that reports of
contingent valuation studies discuss the relevant factors identified in
the standards pertaining to survey instrument design and development,
survey administration, and nature of results in this section. A copy of
the survey instrument shall be included.
(c) Alternative techniques. (1) Benefits transfer approach.
Benefits (or valuation) transfer involves the application of existing
valuation point estimates or valuation function estimates and data that
were developed in one context to value a similar resource and/or
service affected by the discharge of concern. When using benefits
transfer, the trustee(s) should consider:
(i) The comparability of the users and of the resource and/or
services being valued in the initial study(ies) and the changes
resulting from the discharge of concern;
(ii) The comparability of the change in quality or quantity of
resources and/or services in the initial study(ies) and the ones
affected by the discharge of concern; and
(iii) The quality of the study(ies) being used for the transfer(s).
(2) Habitat or species replacement cost method. The habitat or
species replacement cost method involves estimating damages in terms of
the cost of obtaining from alternative sources the equivalent of the
quality and quantity of services diminished by the injury from the
onset of the discharge through full recovery. As appropriate, damages
may be calculated as the cost of replacing entire habitats that support
multiple species and provide a variety of resource services. In
applying this method, the trustee(s) should:
(i) Quantify a total discounted measure of the value of lost
services over the full duration of the injury, taking into account the
extent to which the resource and/or service will recover over time;
(ii) Determine the total discounted measure of the value of
services provided by the restoration or replacement project over the
full life of the relevant species or habitat;
(iii) Calculate the appropriate scale of the restoration or
replacement project, such that the total discounted value of services
provided is equivalent to the total discounted value of interim lost
services; and
(iv) Estimate the cost of implementing the restoration or
replacement project.
Sec. 990.79 Comprehensive damage assessment--compensable values,
implementation guidance.
(a) Committed use. Only losses in committed uses of injured
natural resources and/or services shall be recoverable. Damages for
losses of purely speculative uses are not recoverable. For the purposes
of this subpart, a committed use is:
(1) Any direct or passive use of the injured natural resource and/
or service available to the public, but for the discharge; or
(2) Any documented, planned future use.
(b) Willingness to accept and willingness to pay. For purposes of
this part, the trustee(s) may use willingness to accept, willingness to
pay, or Marshallian consumer surplus (the value of which is between
willingness to accept and willingness to pay) as the criterion to
measure damages. However, only willingness to pay shall be elicited in
contingent valuation survey instruments.
(c) Substitutability. When calculating compensable values, the
trustee(s) should take into account, to the extent practicable, the
ability to substitute alternative resources and/or services for the
injured resources.
(d) Uncertainty. Uncertainty regarding the predicted consequences
of restoration options and predicted supply and demand of natural
resources and/or services should be addressed in the economic analysis
of restoration alternatives and determination of compensable values and
documented in the administrative record.
(e) Discounting. (1) The trustees should discount the three
components of the damage claim: Compensable values; future restoration
costs; and assessment and restoration costs already incurred. NOAA
recommends that the trustee(s) use the U.S. Treasury borrowing rate on
marketable securities of comparable maturity to the period of analysis
for discounting the value of each of the components. The reference date
for the discounting calculation is the date at which the claim is
presented. Section 9.14 of the proposed rule, as required by section
1005(b) of OPA, provides for pre-judgment interest and post-judgment
interest to be paid at a commercial paper rate, starting from 30
calendar days from the date a claim is presented until the date the
claim is paid.
(2) Trustees are referred to Appendix C of OMB Circular A-94 for
information about nominal and real U.S. Treasury rates of various
maturities and for further guidance in calculation procedures. Copies
of the Appendix, which is regularly updated, and of the Circular are
available from the OMB Publications Office (202-395-7332).
(f) Economic definitions. (1) ``Commodity'' as used in contingent
valuation, refers to the item respondents are asked to value. In damage
assessment, the item to be valued will generally be a plan or program
to protect against future oil spills or a plan or program to restore an
already injured set of resources.
(2) ``Payment vehicle'' is the method by which contingent valuation
survey respondents will pay for the commodity being valued. Common
payment vehicles used in contingent valuation include increases in
local, state or federal taxes, or increases in process of consumer
goods or services.
(3) ``Choice mechanism'' is the institutional format in which
contingent valuation survey respondents are asked to express their
value for the commodity offered in the survey. A frequently used choice
mechanism is the voting format (referendum) where respondents express
their value for the commodity offered by choosing to vote for or
against a ballot proposal that would provide the commodity by raising
respondents' taxes.
(4) ``Probability sampling'' refers to the use of sampling
techniques that assign each sampling unit in the target population a
known non-zero probability of being included in the sample. Sampling
units for survey research are usually individuals or households.
Subpart H--Post Assessment Phase
Sec. 990.80 Post-assessment phase--report of assessment.
(a) Requirement. At the conclusion of any of the assessment
procedures provided in this part or upon reaching settlement with the
RP(s) under Sec. 990.14(f) of this part, the trustee(s) shall prepare a
Report of Assessment.
(b) Contents. The Report of Assessment shall contain:
(1) The selected restoration approach;
(2) The estimated costs of implementing that approach; and
(3) An index to the administrative record.
Sec. 990.81 Post-assessment phase--demand.
(a) Requirement. Where the trustee(s) and RP(s) have not reached
settlement by the conclusion of the Assessment Phase, the trustee(s)
shall present to the RP(s), jointly or individually, a demand in
writing for a sum certain representing the damages as determined by the
trustee(s). The demand should be delivered in such a manner as will
establish the date of receipt.
(b) Contents. The demand shall include the following items:
(1) Identification of the discharge of oil from which the claim
arises;
(2) The natural resource trustee(s) asserting the claim;
(3) A brief description of the natural resources and/or services
for which the claim is being brought;
(4) The Report of Assessment, as an attachment; and
(5) The amount of damages being sought.
(c) Damages. (1) The damages presented in the demand include:
(i) Costs of restoration, replacement, rehabilitation, or
acquisition of equivalent natural resources and/or services;
(ii) Compensable values; and
(iii) Reasonable costs of the assessment.
(2) The damage figure should be adjusted, if necessary, by the
guidance in Sec. 990.82(e) of this part.
(d) Review of damage figure. The total damage figure may be divided
into two components: costs (both assessment costs and estimated costs
of restoration) and compensable values. Judicial review of that portion
of the demand representing costs shall be conducted on the
administrative record. Judicial review of that portion of the demand
representing compensable values shall be conducted with the trustee(s)
receiving the benefit of the rebuttable presumption.
Sec. 990.82 Post-assessment phase--accounts.
(a) Joint account. For joint recoveries involving both federal
trustees and state or Indian tribe trustees, trustees may establish an
interest-bearing joint trustee account under the registry of the
applicable federal court. The account should be jointly managed by all
the trustees through a mutually agreed upon trustee committee or
council. Such funds shall be used only as specified in Sec. 990.83 of
this part.
(b) Separate accounts. The trustees have the option of dividing the
recoveries and depositing their respective shares in separate interest-
bearing accounts. Such funds should be retained by each trustee in a
revolving trust account, without further appropriation, for use only as
specified in Sec. 990.83 of this part.
(c) Other accounts. The trustees may establish escrow accounts or
any other investment account(s) unless specifically prohibited by law.
Such funds shall be used only as specified in Sec. 990.83 of this part.
(d) Records. Regardless of the type of account used, the trustee(s)
must maintain appropriate accounting and reporting methods to document
the use of those sums, including independent auditing.
(e) Adjustments. (1) If, for any reason, a recovery cannot be
placed in an interest-bearing account, prior to the presentation of a
demand for the damage amount, the calculation of the expected present
value of the damage amount should be adjusted to correct for the
anticipated effects of inflation over the time estimated to complete
the restoration, rehabilitation, replacement, or acquisition of the
equivalent of the natural resources and/or services.
(2) In order to make the adjustment in paragraph (e)(1) of this
section, the trustee(s) should adjust the damage amount by the rate
payable on notes or bonds issued by the United States Treasury with a
maturity date that approximates the length of time estimated to
complete the restoration, rehabilitation, replacement, or acquisition
of the equivalent.
(3) The adjustment outlined in this paragraph applies only to those
sums to be expended through an Incident-Specific Restoration Plan
described in Sec. 990.84 of this part.
Sec. 990.83 Post-assessment phase--use of sums recovered.
(a) Reimbursable costs. Prior to deposit of the sums recovered, as
provided in Sec. 990.82 of this part, the trustee(s) may immediately
request receipt of those sums recovered that represent the:
(1) Costs of the assessment already incurred and costs necessary to
complete the damage assessment;
(2) Costs already incurred for emergency restoration as described
in Sec. 990.25;
(3) Costs necessary to develop the final restoration plan; and
(4) Costs necessary to implement a restoration plan or individual
project that is part of that restoration plan.
(b) Damages representing compensation. Damages recovered as
compensation for injuries to natural resources and/or services, as
specified in Sec. 990.81 of this part, shall be paid out of the account
established under Sec. 990.82 of this part only for those actions
described in a restoration plan developed pursuant to the guidance in
Sec. 990.84 of this part.
Sec. 990.84 Post-assessment phase--final restoration plan.
(a) Incident-specific Restoration Plan. The Final Restoration Plan
is that plan implemented after damages have been received. The Final
Restoration Plan can be either one of two types: Incident-specific or
regional.
(1) Upon determination of the amount of the award of a natural
resource damage claim, as authorized by section 1006(a)(2) of OPA, the
trustee(s) shall prepare a Final Restoration Plan as provided in
section 1006(c) of OPA.
(2) This post-assessment restoration plan should be based upon the
restoration component developed pursuant to subpart G of this part.
(3) If there are significant modifications between the restoration
component developed under subpart G of this part, which was made
available to the public, and the Final Restoration Plan, the Final
Restoration Plan shall be made available for a 30 calendar day public
review and comment period.
(4) Before implementing the significantly modified plan discussed
in paragraph (a)(3) of this section, the plan and a response to any
public comments received, should be made available to the public.
(5) This Final Restoration Plan shall be implemented using the sums
in one or more of the accounts described in Sec. 990.82 of this
subpart.
(b) Regional Restoration Plan. (1) Where the trustee(s) has
developed a Regional Restoration Plan, as described in Sec. 990.16 of
this part, through a public review and comment process, for a specific
area, e.g., bay or estuary, monies placed in an account established
under Sec. 990.82 of this part may be pooled with other recoveries to
implement that Regional Restoration Plan, in whole or in part.
(2) Where a Regional Restoration Plan has not been or is not in the
process of being developed, an incident-specific plan must be developed
for use of the damages recovered.
(3) To qualify as a Regional Restoration Plan for use of sums
recovered pursuant to this part, the plan must:
(i) Be developed through a process consistent with the prespill
planning process described in Sec. 990.16 of this part, including
public review and comment; and
(ii) Address the same or similar resource injuries as those
identified in the assessment.
Appendix A to Part 990--Draft Memorandum of Understanding (MOU)
I. Introduction
This Memorandum of Understanding (MOU) by and between the state
of ________ (state), the National Oceanic and Atmospheric
Administration of the United States Department of Commerce (NOAA),
the United States Department of the Interior (DOI) and the United
States Department of Agriculture (USDA) (collectively referred to as
the Trustees) is entered into to ensure the coordination and
cooperation of the trustees in the initiation of assessment and
assessment of damages for injuries to natural resources and/or
services resulting from ________, and the application of any natural
resource damages recovered toward the restoration, rehabilitation,
replacement and/or acquisition of equivalent natural resources.
[Note: Obviously, in any given incident there may be more or
fewer trustees than those indicated above.]
II. Parties
The following officials, or their designees, are parties to this
MOU and act on behalf of the public as Trustees for natural
resources under this MOU:
1. The ________ of the state of ________,
2. The Under Secretary for Oceans and Atmosphere, Administrator
of the National Oceanic and Atmospheric Administration, acting on
behalf of the Secretary of Commerce,
3. The Secretary of the Department of the Interior,
4. The Secretary of the Department of Agriculture,
5. [The Secretary of Department of Defense, Department of
Energy, and/or the designated trustee of a Tribe and any foreign
[international] trustee.]
III. Location
This MOU is intended to address natural resources injured
[damaged] * * *
[Identify as precisely as possible geographic location and
incident(s) involved]
* * * (the Incident).
IV. Purpose
The trustees recognize the importance of integrating and
coordinating the assessment of natural resource damages for injuries
to natural resources affected by the Incident, seeking compensation
for those injuries to natural resources and/or services and
restoration of those affected resources and/or services. The purpose
of this MOU is to provide a framework for such coordination and
cooperation between the trustees, and for the implementation of the
activities of the trustees in furtherance of their natural resource
trustee responsibilities. The trustees' activities will primarily
involve assessing damages for injuries to natural resources, seeking
compensation for those injuries to natural resources and/or services
and restoring the injured natural resources and/or services affected
by the incident. Nothing in this MOU is to imply that any signatory
trustee is in any way abrogating or ceding any respons
FR Doc. 94-225 Natural Resource Damage Assessments
ibility or
authority inherent in its control or trusteeship over natural
resources.
V. Authority
The trustees enter into this MOU in accordance with the natural
resource trustee authorities provided for each trustee by the
Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., the Oil
Pollution Act of 1990, Public Law 101-380, the Comprehensive
Environmental Response, Compensation and Liability Act, as amended,
42 U.S.C. 9601 et seq., and, if utilized, the Natural Resource
Damage Assessment Regulations, 43 CFR part 11, or the OPA
regulations, when promulgated.
VI. Organization
The trustees recognize the importance of coordinating their
efforts in order to effectively and efficiently meet their
respective natural resource trustee responsibilities under
applicable federal and state law. Accordingly, there is hereby
created a Trustee Council (Council) to implement the MOU to which
each trustee will designate a representative and an alternate. The
Council may create subcommittees when they are deemed necessary to
effect the purposes of this MOU. A representative designated by
unanimous consent of the Trustee Council members will serve as Lead
Administrative Trustee for administrative purposes. This
representative shall fully coordinate his activities with and act
under the direction of the Council. The Trustee Council will also
seek advisory participation from the United States Department of
Justice, the United States Department of Transportation (Coast
Guard), the State Attorney General or other legal advisor and the
United States Environmental Protection Agency, when appropriate.
VII. Duties and Responsibilities
On behalf of the trustees, the Trustee Council shall coordinate
and authorize all trustee activities and matters under this MOU in
accordance with the decisionmaking requirements contained in Section
VIII. The Trustee Council may take whatever actions the Council, in
its discretion, determines are necessary to fulfill the trust
responsibilities of each trustee under and to effectuate the
purposes of applicable federal and state law. It is expected that
the Trustee Council, in accordance with applicable laws and
policies, may take the following actions, among others, to address
the trustees' natural resource trustee responsibilities:
A. Conduct scientific and technical studies, sampling and other
matters related to the assessment of natural resource damages for
injury to natural resources with respect to trust resources which
may be lost, injured or destroyed.
B. Seek compensation from responsible parties for the damages
assessed by the trustees and for the costs of planning and
implementing the assessment.
C. Acting in concert with its attorneys, participate in
negotiations with responsible parties.
D. In accordance with applicable law, supervise, manage and
obligate any money paid to the trustees by or on behalf of
responsible parties for the purpose of assessing, restoring,
replacing, rehabilitating, and/or acquiring the equivalent of the
affected natural resources.
E. Oversee the development and implementation of a plan for the
restoration, replacement, rehabilitation, and/or acquisition of
equivalent resources for those trust resources, and/or services,
that may be injured, destroyed or lost.
F. In accordance with applicable law, make all necessary
decisions for the management and administration of funds pursuant to
Section IX of this MOU.
G. In accordance with applicable law, arrange for one or more
contracts with professional consultants, technical or otherwise,
that the Trustee Council determines are necessary and best qualified
to provide services to the Council.
H. Identify a contact for coordination with the U.S. Coast Guard
regarding access to the Oil Spill Liability Trust Fund.
The duties of the Lead Administrative Trustee shall include, but
are not limited to: coordination and monitoring of the progress of
the natural resource damage assessment process; scheduling of
meetings of the Trustee Council, and preparation of agendas for
those meetings; acting as a central contact point for the Trustee
Council; establishment and maintenance of the administrative record
and other records and relevant documents; and such other duties as
directed by the Trustee Council. The Lead Administrative Trustee
will be responsible for informing the other trustees of all
pertinent developments on a timely basis.
VIII. Decisionmaking
The trustees agree that all decisions implementing this MOU
shall require unanimous approval. In the event that unanimous
agreement cannot be reached among the members of the Trustee
Council, the matter in dispute will be elevated to the Trustees for
resolution. If necessary, the trustees may establish further
mechanisms by which disputes may be resolved. The trustees further
agree that decisionmaking deliberations will focus upon the
trustees' mutual purpose of assessing, restoring, rehabilitating,
replacing and/or acquiring the equivalent of the affected natural
resources, rather than upon control or respective trusteeship over
those resources.
IX. Funds
The trustees agree to cooperate in good faith to attempt to
establish, to the extent consistent with applicable law, a joint
trust account for purposes of receiving, depositing, holding,
disbursing, managing and expending all natural resource damage
recoveries obtained or received by the trustees relating to the
natural resource injuries arising out of the Incident and interest
earned thereon. This joint trust account will be established under
the registry of the applicable Federal district court. Such
recovered damages shall be used for restoration activities conducted
under this MOU to address those injuries to natural resources and/or
services. Any recoveries for injury to natural resources obtained or
received by or on behalf of any trustee shall be deposited in this
joint trust account.
The Trustee Council, in accordance with its decisionmaking
process in section VIII of this MOU, shall establish standards and
procedures governing the joint use of all natural resource damages
received by the Trustees for the purposes of restoring, replacing,
rehabilitating and/or acquiring the equivalent of natural resources
injured as a result of the Incident and the reduced or lost services
provided by such resources pursuant to the final Restoration Plan.
The trustees further agree that the following damage assessment
costs shall be advanced or reimbursed to each trustee out of any
damage assessment cost recoveries or payments thereon, including
funds received from the Oil Spill Liability Trust Fund: reasonable
unreimbursed costs jointly agreed upon for the planning, conduct,
evaluation and coordination of all natural resource damage
assessment activities pursued by the Trustee Council with respect to
injuries incurred resulting from the Incident.
X. Confidentiality
The trustees agree that it is in the public interest that all
scientific data arising out of their review of the injury to natural
resources as a result of the Incident be made public. Therefore,
such data shall be made public as soon as publication will not
prejudice the on-going assessment. Public sharing of scientific data
will be the general policy of the trustees.
However, all parties to this MOU recognize that all written or
oral communications related to the assessment and recovery of
damages for injury to natural resources and/or services may be
undertaken in anticipation of litigation. Accordingly, all oral and
written communications and work product will be treated as
privileged attorney-client communications, attorney work product or
protected by other applicable privilege (or a combination thereof),
as appropriate, and will be protected from disclosure to the maximum
extent possible under applicable federal or state law. They further
agree that when a request for production of such a record is
received pursuant to any applicable federal or state law, the
request will be forwarded for response to the trustee or trustees to
which the privilege applies or whose representatives originally
generated or contributed the record requested. Nothing contained
herein shall be construed as prohibiting or restraining the trustees
or the Trustee Council from agreeing to release any record.
XI. Reservation of Rights
Except for the confidentiality agreement contained in Section X,
all parties understand that this document is not intended to create
any further legal rights or obligations between the parties, the
trustees or any other persons not a party to this MOU.
XII. Modification of Agreement
It is acknowledged that additional agreements may be executed by
the trustees with regard to natural resource damage claims that
arise and to planning for the restoration, replacement,
rehabilitation, and/or acquisition of equivalent natural resources
that may be injured, destroyed or lost. Therefore, modification of
this MOU must be in writing and upon approval of all Trustees
currently parties to the MOU.
XIII. Termination
This MOU shall be in effect from the date of execution until
termination by agreement of the trustees. At any time the trustees
determine that the purposes underlying this MOU have been addressed,
the MOU will terminate upon such a finding. In the event any trustee
withdraws from the MOU, such withdrawal must be in writing at least
thirty calendar days in advance of the withdrawal. In the event of
such withdrawal, this MOU remains in full force and effect for the
remaining parties.
In the event of the withdrawal of any trustee, or at the
termination of this MOU, there shall be a full and complete
accounting of all funds received, deposited, held, disbursed,
managed, expended pursuant to Section IX of this MOU, or otherwise
controlled in any joint account by the trustees as a result of the
incident.
XIV. Limitation
Nothing in this MOU shall be construed as obligating the United
States, a state or any other public agency, their officers, agents
or employees, to expend any funds in excess of appropriations
authorized by law.
XV. Third Party Challenges or Appeals
The rights and responsibilities contained in this MOU are
subject to the availability of funding and are intended to be
guidance for the respective trustees. They may not be the basis of
any third party challenges or appeals.
XVI. Execution: Effective Date
This MOU may be executed in counterparts. A copy with all
original executed signature pages affixed shall constitute the
original MOU. The date of execution shall be the date of the final
trustee's signature.
Appendix B to Part 990--Memorandum of Agreement (MOA)
This memorandum of agreement (MOA) is between the [trustee(s)],
referred to as ________, and [responsible party(ies)], referred to
as ________. The [trustee(s)] and [RP(s)] are hereafter collectively
referred to as ``the parties.'' This MOA shall become effective as
of the last date of its execution by the authorized representatives
of the parties.
The parties, in order to pursue a [negotiated settlement of
possible claims or phased joint assessment (PJA)] arising from
[description of discharge], have executed this MOA, which addresses
the nature and scope of [settlement negotiations in this case or the
PJA].
The parties agree that, by entering into this MOA, neither party
is making any admission of fact or law. This MOA shall not be
admissible as evidence of proof of liability or nonliability or the
validity or nonvalidity of any claim or defense in the above-
referenced or other discharge. This MOA shall not prejudice the
position of either party in the above-referenced or other discharge,
nor shall it be used for any purpose other than the attempted
[settlement of this case or PJA].
Recitals
Whereas, the parties to this MOA seek to resolve without further
litigation all issues in the [case or PJA];
Whereas, the parties are entering into the negotiations in good
faith and agree to consider and discuss all issues that either party
deems necessary or appropriate to a final resolution;
Whereas, the parties intend to negotiate in good faith through
their expressly designated representatives and do not intend to
undermine negotiations through other means or methods;
Now, therefore, based upon the above premises and the mutual
covenants and considerations set forth below, the parties agree as
follows:
PJA Process and Schedule
The [settlement or PJA] process shall take the (five)-phase
approach, described below. The parties will use their best efforts
to adhere to the schedule set forth in Attachment A, hereto. This
(five)-phase approach and schedule may be modified upon written
agreement of the parties.
Phase I--Agreeing to the Settlement Process
During Phase I the parties discussed and formulated a process to
engage in substantive settlement negotiations. The agreements of the
parties as a result of those discussions are contained in this MOA.
If this MOA is negotiated as part of a claim, this MOA will be
submitted to the Court in the litigation in conjunction with a joint
petition of the parties for a stay of the litigation. Phase II of
the settlement process shall proceed upon the Court's approval of
such joint petition.
[The following section outlines the maximum extent of agreement
between the possible parties. This section is designed to be modular
in nature, i.e., one may pick appropriate phases or components to
revise and include in a particular MOA.]
Phase II--Preassessment Phase
During Phase II the parties will discuss the technical,
scientific, and other issues pertaining to preassessment,
particularly as to the type of assessment procedure to conduct for
[the expected area of impacts]. The discussions will proceed on the
basis of natural resource units. The natural resource units were
chosen because they logically lend themselves to segregated
discussion. The natural resource units will be:
[Natural resource units may consist of resource categories,
e.g., surface waters, geologic units; aquatic resources, including
surface water, sediments, fish, etc.; terrestrial resources; acres
of particular wetland or other habitat type; certain populations of
fish and/or wildlife species; recreational areas.]
The substantive discussions on a particular natural resource
unit will proceed according to the Settlement Process Schedule
provided in Attachment A as follows:
A. The basis for the [trustee's(s')] trusteeship of the
resources and the precise geographical location and extent of the
same; and
B. The [trustee's(s')] initial recommendation of the type of
assessment procedure to implement for this incident.
Phase III--Assessment/Restoration Phase
During Phase III, the parties will discuss the nature and extent
of the injuries, along with the appropriate restoration approach,
the cost of implementing that approach, and compensation for
resources or services that are not restored. Phase III may be broken
down into as many as three components as described below:
A. Injury determination/quantification component:
--Baseline/reference/control conditions
--Change from above conditions
--Quantification of injured natural resources and/or services
B. Restoration Component:
--Development of an approach
--Estimating rate of recovery
--Estimating interim lost uses
C. Economic Valuation Component:
--Estimate lost compensable values
Phase IV--Post-Assessment Phase
During Phase IV, the parties will discuss the actions to be
carried out in the Post-Assessment Phase, including the components
listed below:
A. Development of Final Restoration Plan.
B. Compensatory Restoration.
C. Accounts and Disbursements.
D. Monitoring.
Phase V--Final Settlement Negotiations
During Phase V, the parties will discuss and attempt to resolve
the outstanding issues necessary for a final settlement. If not
previously resolved, these will include: (1) The amount of any
natural resource damages and assessment costs to be paid to the
[trustee(s)] by [RP(s)]; and (2) the contents and details of the
final settlement agreement and consent decree.
By the conclusion of Phase V, the parties should have agreed to
a settlement agreement and consent decree resolving all issues that
will be made available for public review and comment and submitted
for court approval. The parties will submit to each other written
statements of their positions as necessary during the Phase V
discussions. Phase V should conclude no later than ________.
Joint Data
The [trustee(s)] and the [RP(s)] stipulate that each party to
the agreement shall be barred from introducing new or different data
(information, analysis, etc.) collected outside the joint process to
challenge the jointly collected data in either a judicial or
administrative proceeding under OPA.
Public Review
During the settlement process, appropriate public review shall
be provided as follows:
1. Following the complete execution of this MOA, the MOA shall
be submitted to the Court and released to the public. Any subsequent
modifications of this MOA shall also be submitted to the Court and
released to the public.
2. During Phases II, III, IV, and V of the [settlement or
assessment] process, the [trustee(s)] at its discretion may make
available for public review copies of any information that it has
submitted to the [RP(s)], provided that such information does not
contain information submitted by the [RP(s)] to the [trustee(s)] in
the [settlement or assessment] process. Ten (10) days prior to any
submission of such information, the [trustee(s)] shall deliver to
the [RP(s)] a general written description of such information that
is sufficient to assure the [RP(s)] that such information will not
contain any confidential information submitted by the [RP(s)] to the
[trustee(s)] in the [settlement or assessment] process.
3. During Phases II, III, IV, and V, of the [settlement or
assessment] process, the [trustee(s)], following the express written
agreement of the [RP(s)], may make available for public review any
information that the [RP(s)] has submitted to the [trustee(s)].
4. During Phases II, III, IV, and V, of the [settlement or
assessment] process, the [trustee(s)] shall make available for
public review and comment any final agreements reduced to writing by
the parties.
5. The [trustee(s)] negotiators, at their discretion, may meet
with the general public or with individual members of the public
regarding the status of the settlement process, provided that the
[trustee(s)] does not discuss at such meetings information submitted
by the [RP(s)] to the [trustee(s)] in the settlement process. The
[RP(s)] may have a representative present at the meetings that are
open to the general public.
6. At the completion of each phase, the [trustee(s)] shall enter
all documentation developed for that phase into the Administrative
Record of the [settlement or assessment] process to be made
available to the public during the review of the settlement
agreement or consent decree.
7. Following the complete execution of any final settlement
agreement(s) and consent decree(s) that will be submitted for court
approval, the [trustee(s)] shall make such agreement(s) and
decree(s) available for public review and comment for a period of
____ days. The [trustee(s)] may hold a public meeting to receive
comments during the comment period. The parties agree that any such
consent decree(s) shall not be approved as an order of the court
until the comment period expires and all comments received have been
duly considered by the parties and jointly submitted to the court
together with responses and/or mutually agreed amendments to the
consent decree(s).
Stay of Litigation
[For Litigation-Driven Assessments]
Upon complete execution of this MOA, the parties shall file the
MOA with a joint petition to the Court to stay the litigation in its
entirety, including all discovery and motions practice, except as
hereinafter provided dealing with matters or issues covered by this
MOA. It is agreed that the parties will use their best efforts
(provided that such efforts are reciprocal as between the parties)
to respond to all Rule 34 F.R. Civ. P. requests for production of
documents which were served prior to [some date prior to this MOA] .
It is agreed that should any disputes over production of documents
arise, no motions to compel shall be filed during the pendency of
this stay and each party shall reserve its right to file any such
motion after the stay is lifted.
In addition, either party at any time may request, in writing,
that the other party make available to it, for review and/or
copying, documents not previously requested or produced in the
litigation that are reasonably required in the negotiation process.
Such requests shall be limited in nature and reasonably precise in
their description of the documents requested; such requests shall
not be burdensome or overly-broad. Further, the parties reserve
their right to withhold any such documents that, under applicable
law, are irrelevant or qualify as attorney-client or litigation work
product materials. It is agreed that should any disputes over
document production under this paragraph arise, such disputes shall
not affect the [settlement or assessment] process schedule and no
motions to compel may be filed during the pendency of this stay; and
each party shall reserve its right to file any appropriate discovery
requests or motions to compel production of such documents after the
stay is lifted.
The parties in their joint petition shall request that the court
vacate all deadlines dealing with matters or issues covered by this
MOA. The parties agree that the stay of litigation should remain in
effect so long as the parties are engaged in the [settlement or
assessment] process pursuant to this MOA. If this MOA should
terminate prior to a final settlement and court approval of a final
consent decree, all litigation shall continue as before, all pending
motions shall be recalendered, and all court deadlines shall be
reimposed, except all such deadlines shall be extended as set forth
in Attachment ____, hereto.
The parties may jointly request the court to designate a
mediator or special master, with expertise in natural resource
damage actions, for assistance in resolving disputes over legal or
other issues upon which the parties cannot agree. Such involvement
by the court's designee shall not result in any final or binding
decision on any such issue, but rather shall be in the form of
mediation assistance to help the parties reach mutual agreement on
such disputed issues. The costs for any such mediator or special
master shall be shared equally between the [trustee(s)] and the
[RP(s)].
Confidentiality
To encourage full and frank discussions, the parties further
agree to jointly petition the court to order that the substance of
all settlement negotiations are confidential and that all documents
and information related thereto, except the parties' joint petition,
the court's Order, and the matters described in Section ____ above,
shall not be released to anyone outside of the attorneys,
consultants, and administrative personnel involved in this action or
the negotiations and their principals.
Modification
This MOA may be modified by agreement of the parties. All
modifications shall be in writing and signed by authorized
representatives of the parties. All modifications shall be submitted
to and filed with the court.
Termination
At any time either party may terminate this MOA and the
[settlement or assessment] process upon thirty (30) days' written
notice to the other party. The stay of litigation shall be lifted
thirty (30) days after receipt by the non-terminating party of the
notice of termination; and the date upon which the stay is lifted
shall be the ``MOA Termination Date.''
Non-Waiver of Claims, Defenses, and Privilege
Neither party waives any privilege, defenses, or claims that
could otherwise be asserted with respect to any claims made or
information or data communicated or acquired by virtue of these
settlement discussions or related proceedings. Statements made in
the negotiation process shall not constitute a waiver of any claims
or defenses nor serve any party as a substitute for the need to
develop evidence to be used in any litigation now pending or which
may subsequently be filed for or against the parties. Neither party
will oppose discovery, including the depositions of witnesses,
relating to the natural resource damage action on the grounds that
the discussions as contemplated herein serve as a substitute for
discovery or that discovery shall be repetitive of information
obtained during the negotiations. These negotiations shall be
conducted pursuant to Rule 408, Federal Rules of Evidence, which
shall be binding upon all participants in the [settlement or
assessment] process discussions. These negotiations do not protect
from discovery any information otherwise discoverable merely because
it is presented in these or subsequent negotiations.
Attachment A--Schedule for Performance
[Note: Parties should devise reasonable time tables for each
phase and component. Parties should also provide for an expedited
process for modifications that may become necessary in the
schedule.]
Appendix C to Part 990--Expedited Damage Assessment: Oil
Characteristics
Very light refined products, such as gasoline and jet fuel, are
extremely volatile and usually evaporate within hours to days after
being discharged. They usually contain high concentrations of toxic
compounds that can result in high but localized mortality to water-
column and intertidal resources. Yet, because of their volatility,
they are generally non-persistent and cause little or no residual
contamination of sediments and organisms. Where a discharge of these
products results in minimal residual contamination of sediments and
organisms, the trustee(s) may determine an EDA is appropriate.
Light oil includes diesel, No. 2 fuel oil, and certain light
crudes. These oils are considered to be moderately volatile. Up to
50 percent can evaporate within the first 24 hours depending upon
the air and water temperatures. Like very light, refined products,
light oils contain high concentrations of the most toxic water-
soluble compounds and therefore may be acutely toxic to water-column
organisms. These oils are moderately persistent and likely to leave
residual oil in the environment with the attendant risk of long-term
contamination of sediments and chronic toxicity to benthic
organisms. Because of these characteristics, the trustee(s) should
evaluate discharges of light oil very carefully prior to selecting
EDA procedures.
Medium crude oils comprise the third category of oil types. Up
to one-third of these oils can evaporate within the first 24 hours
leaving a significant amount of oil persistent in the environment.
The water soluble fraction is acutely toxic immediately after the
discharge. In addition, residual contamination of the sediment
creates chronic toxicity problems. However, there are extensive
databases regarding toxicity problems associated with the sediment
and water column. There are also studies from previous discharges
that have documented the effects of the contamination of certain
habitats, fish and wildlife. The trustee(s) may adopt the EDA
approach where existing data are sufficient to determine injury
using limited, focused studies.
Finally, heavy oils, such as No. 6 fuel oil and Bunker C, result
in little or no loss by evaporation and have very low water
solubilities. These oils can sink in fresh-water habitats and may be
highly persistent in both fresh and salt water systems. Acute
effects may result from smothering rather than aquatic toxicities.
While persistent, the bioavailability and resulting toxicity of the
high molecular-weight polynuclear aromatic hydrocarbons (PAHs) is
not well known. Where extensive contamination of intertidal or
subtidal sediments is likely, it may be necessary to conduct
extensive studies, more appropriate for a CDA, to determine the
injury to resources and/or services.
Appendix D to Part 990--List of Acronyms
ANPRM--Advance Notice of Proposed Rulemaking.
BNA--Bureau of National Affairs.
CDA--Comprehensive Damage Assessment.
CERCLA--Comprehensive Environmental Response, Compensation, and
Liability Act of 1980.
CEQ--Council on Environmental Quality.
CFR--Code of Federal Regulations.
COC--Citizen Oversight Committee.
CV--Contingent Valuation.
CWA--Clean Water Act, as Amended.
DARP--Draft Assessment/Restoration Plan.
DART--Damage Assessment Regulations Team.
DOI--U.S. Department of the Interior.
EDA--Expedited Damage Assessment.
EIS--Environmental Impact Statement.
E.O.--Executive Order.
Fund--Oil Spill Liability Trust Fund.
HVM--Hedonic Valuation Methodology.
LAT--Lead Administrative Trustee.
MOA--Memorandum of Agreement.
MOU--Memorandum of Understanding.
NCP--National Oil and Hazardous Substance Pollution Contingency
Plan.
NEPA--National Environmental Policy Act of 1969.
NMFS--National Marine Fisheries Service.
NOAA--National Oceanic and Atmospheric Administration.
NRDAM/CME--Natural Resource Damage Assessment Model/Coastal and
Marine Environments.
NRDAM/GLE--Natural Resource Damage Assessment Model/Great Lakes
Model.
OMB--Office of Management and Budget.
OPA--Oil Pollution Act of 1990.
OSC--On-Scene Coordinator.
PAH--Polynuclear Aromatic Hydrocarbons.
PJA--Phased Joint Assessment.
QA--Quality Assurance.
RI/FS--Remedial Investigation/Feasibility Study
RP--Responsible Party.
RRT--Regional Response Team.
TCM--Travel Cost Methodology.
U.S. EPA--U.S. Environmental Protection Agency.
U.S.C.--United States Code.
USDA--United States Department of Agriculture.
WTA--Willingness to Accept.
WTP--Willingness to Pay.
[FR Doc. 94-225 Filed 1-4-94; 8:45 am]
BILLING CODE 3510-12-M
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