cfr_sections
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35 rows where part_number = 990 and title_number = 15 sorted by section_id
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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 15:15:4.1.2.5.22.1.33.1 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | A | Subpart A—Introduction | § 990.10 Purpose. | NOAA | The goal of the Oil Pollution Act of 1990 (OPA), 33 U.S.C. 2701 et seq., is to make the environment and public whole for injuries to natural resources and services resulting from an incident involving a discharge or substantial threat of a discharge of oil (incident). This goal is achieved through the return of the injured natural resources and services to baseline and compensation for interim losses of such natural resources and services from the date of the incident until recovery. The purpose of this part is to promote expeditious and cost-effective restoration of natural resources and services injured as a result of an incident. To fulfill this purpose, this part provides a natural resource damage assessment process for developing a plan for restoration of the injured natural resources and services and pursuing implementation or funding of the plan by responsible parties. This part also provides an administrative process for involving interested parties in the assessment, a range of assessment procedures for identifying and evaluating injuries to natural resources and services, and a means for selecting restoration actions from a reasonable range of alternatives. | ||||
| 15:15:4.1.2.5.22.1.33.2 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | A | Subpart A—Introduction | § 990.11 Scope. | NOAA | The Oil Pollution Act of 1990 (OPA), 33 U.S.C. 2701 et seq., provides for the designation of federal, state, and, if designated by the Governor of the state, local officials to act on behalf of the public as trustees for natural resources and for the designation of Indian tribe and foreign officials to act as trustees for natural resources on behalf of, respectively, the tribe or its members and the foreign government. This part may be used by these officials in conducting natural resource damage assessments when natural resources and/or services are injured as a result of an incident involving an actual or substantial threat of a discharge of oil. This part is not intended to affect the recoverability of natural resource damages when recoveries are sought other than in accordance with this part. | ||||
| 15:15:4.1.2.5.22.1.33.3 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | A | Subpart A—Introduction | § 990.12 Overview. | NOAA | This part describes three phases of a natural resource damage assessment. The Preassessment Phase, during which trustees determine whether to pursue restoration, is described in subpart D of this part. The Restoration Planning Phase, during which trustees evaluate information on potential injuries and use that information to determine the need for, type of, and scale of restoration, is described in subpart E of this part. The Restoration Implementation Phase, during which trustees ensure implementation of restoration, is described in subpart F of this part. | ||||
| 15:15:4.1.2.5.22.1.33.4 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | A | Subpart A—Introduction | § 990.13 Rebuttable presumption. | NOAA | Any determination or assessment of damages to natural resources made by a Federal, State, or Indian trustee in accordance with this part shall have the force and effect of a rebuttable presumption on behalf of the trustee in any administrative or judicial proceeding under OPA. | ||||
| 15:15:4.1.2.5.22.1.33.5 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | A | Subpart A—Introduction | § 990.14 Coordination. | NOAA | (a) Trustees. (1) If an incident affects the interests of multiple trustees, the trustees should act jointly under this part to ensure that full restoration is achieved without double recovery of damages. For joint assessments, trustees must designate one or more Lead Administrative Trustee(s) to act as coordinators. (2) If there is a reasonable basis for dividing the natural resource damage assessment, trustees may act independently under this part, so long as there is no double recovery of damages. (3) Trustees may develop pre-incident or incident-specific memoranda of understanding to coordinate their activities. (b) Response agencies. Trustees must coordinate their activities conducted concurrently with response operations with response agencies consistent with the NCP and any pre-incident plans developed under § 990.15(a) of this part. Trustees may develop pre-incident memoranda of understanding to coordinate their activities with response agencies. (c) Responsible parties —(1) Invitation. Trustees must invite the responsible parties to participate in the natural resource damage assessment described in this part. The invitation to participate should be in writing, and a written response by the responsible parties is required to confirm the desire to participate. (2) Timing. The invitation to participate should be extended to known responsible parties as soon as practicable, but not later than the delivery of the “Notice of Intent to Conduct Restoration Planning,” under § 990.44 of this part, to the responsible party. (3) Agreements. Trustees and responsible parties should consider entering into binding agreements to facilitate their interactions and resolve any disputes during the assessment. To maximize cost-effectiveness and cooperation, trustees and responsible parties should attempt to develop a set of agreed-upon facts concerning the incident and/or assessment. (4) Nature and extent of participation. If the responsible parties accept the invitation to participate, the scope of that p… | ||||
| 15:15:4.1.2.5.22.1.33.6 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | A | Subpart A—Introduction | § 990.15 Considerations to facilitate restoration. | NOAA | In addition to the procedures provided in subparts D through F of this part, trustees may take other actions to further the goal of expediting restoration of injured natural resources and services, including: (a) Pre-incident planning. Trustees may engage in pre-incident planning activities. Pre-incident plans may identify natural resource damage assessment teams, establish trustee notification systems, identify support services, identify natural resources and services at risk, identify area and regional response agencies and officials, identify available baseline information, establish data management systems, and identify assessment funding issues and options. Potentially responsible parties, as well as all other members of the public interested in and capable of participating in assessments, should be included in pre-incident planning to the fullest extent practicable. (b) Regional Restoration Plans. Where practicable, incident-specific restoration plan development is preferred, however, trustees may develop Regional Restoration Plans. These plans may be used to support a claim under § 990.56 of this part. Regional restoration planning may consist of compiling databases that identify, on a regional or watershed basis, or otherwise as appropriate, existing, planned, or proposed restoration projects that may provide appropriate restoration alternatives for consideration in the context of specific incidents. | ||||
| 15:15:4.1.2.5.22.2.33.1 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | B | Subpart B—Authorities | § 990.20 Relationship to the CERCLA natural resource damage assessment regulations. | NOAA | (a) General. Regulations for assessing natural resource damages resulting from hazardous substance releases under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (CERCLA), 42 U.S.C. 9601 et seq., and the Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. 1321 et seq., are codified at 43 CFR part 11. The CERCLA regulations originally applied to natural resource damages resulting from oil discharges as well as hazardous substance releases. This part supersedes 43 CFR part 11 with regard to oil discharges covered by OPA. (b) Assessments commenced before February 5, 1996. If trustees commenced a natural resource damage assessment for an oil discharge under 43 CFR part 11 prior to February 5, 1996 they may complete the assessment in compliance with 43 CFR part 11, or they may elect to use this part, and obtain a rebuttable presumption. (c) Oil and hazardous substance mixtures. For natural resource damages resulting from a discharge or release of a mixture of oil and hazardous substances, trustees must use 43 CFR part 11 in order to obtain a rebuttable presumption. | ||||
| 15:15:4.1.2.5.22.2.33.2 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | B | Subpart B—Authorities | § 990.21 Relationship to the NCP. | NOAA | This part provides procedures by which trustees may determine appropriate restoration of injured natural resources and services, where such injuries are not fully addressed by response actions. Response actions and the coordination with damage assessment activities are conducted pursuant to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300. | ||||
| 15:15:4.1.2.5.22.2.33.3 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | B | Subpart B—Authorities | § 990.22 Prohibition on double recovery. | NOAA | When taking actions under this part, trustees are subject to the prohibition on double recovery, as provided in 33 U.S.C. 2706(d)(3) of OPA. | ||||
| 15:15:4.1.2.5.22.2.33.4 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | B | Subpart B—Authorities | § 990.23 Compliance with NEPA and the CEQ regulations. | NOAA | (a) General. The National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq. and Council on Environmental Quality (CEQ) regulations implementing NEPA, 40 CFR chapter V, apply to restoration actions by federal trustees, except where a categorical exclusion or other exception to NEPA applies. Thus, when a federal trustee proposes to take restoration actions under this part, it must integrate this part with NEPA, the CEQ regulations, and NEPA regulations promulgated by that federal trustee agency. Where state NEPA-equivalent laws may apply to state trustees, state trustees must consider the extent to which they must integrate this part with their NEPA-equivalent laws. The requirements and process described in this section relate only to NEPA and federal trustees. (b) NEPA requirements for federal trustees. NEPA becomes applicable when federal trustees propose to take restoration actions, which begins with the development of a Draft Restoration Plan under § 990.55 of this part. Depending upon the circumstances of the incident, federal trustees may need to consider early involvement of the public in restoration planning in order to meet their NEPA compliance requirements. (c) NEPA process for federal trustees. Although the steps in the NEPA process may vary among different federal trustees, the process will generally involve the need to develop restoration plans in the form of an Environmental Assessment or Environmental Impact Statement, depending upon the trustee agency's own NEPA regulations. (1) Environmental Assessment. (i) Purpose. The purpose of an Environmental Assessment (EA) is to determine whether a proposed restoration action will have a significant (as defined under NEPA and § 1508.27 of the CEQ regulations) impact on the quality of the human environment, in which case an Environmental Impact Statement (EIS) evaluating the impact is required. In the alternative, where the impact will not be significant, federal trustees must issue a Finding of No Significant Impact (FONSI) as part of t… | ||||
| 15:15:4.1.2.5.22.2.33.5 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | B | Subpart B—Authorities | § 990.24 Compliance with other applicable laws and regulations. | NOAA | (a) Worker health and safety. When taking actions under this part, trustees must comply with applicable worker health and safety considerations specified in the NCP for response actions. (b) Natural Resources protection. When acting under this part, trustees must ensure compliance with any applicable consultation, permitting, or review requirements, including but not limited to: the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq.; the Coastal Zone Management Act of 1972, 16 U.S.C. 1451 et seq.; the Migratory Bird Treaty Act, 16 U.S.C. 703 et seq.; the National Marine Sanctuaries Act, 16 U.S.C. 1431 et seq.; the National Historic Preservation Act, 12 U.S.C. 470 et seq.; the Marine Mammal Protection Act, 16 U.S.C. 1361 et seq.; and the Archaeological Resources Protection Act, 16 U.S.C. 470 et seq. | ||||
| 15:15:4.1.2.5.22.2.33.6 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | B | Subpart B—Authorities | § 990.25 Settlement. | NOAA | Trustees may settle claims for natural resource damages under this part at any time, provided that the settlement is adequate in the judgment of the trustees to satisfy the goal of OPA and is fair, reasonable, and in the public interest, with particular consideration of the adequacy of the settlement to restore, replace, rehabilitate, or acquire the equivalent of the injured natural resources and services. Sums recovered in settlement of such claims, other than reimbursement of trustee costs, may only be expended in accordance with a restoration plan, which may be set forth in whole or in part in a consent decree or other settlement agreement, which is made available for public review. | ||||
| 15:15:4.1.2.5.22.2.33.7 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | B | Subpart B—Authorities | § 990.26 Emergency restoration. | NOAA | [61 FR 500, Jan. 5, 1996, as amended at 67 FR 61492, Oct. 1, 2002] | (a) Trustees may take emergency restoration action before completing the process established under this part, provided that: (1) The action is needed to avoid irreversible loss of natural resources, or to prevent or reduce any continuing danger to natural resources or similar need for emergency action; (2) The action will not be undertaken by the lead response agency; (3) The action is feasible and likely to succeed; (4) Delay of the action to complete the restoration planning process established in this part likely would result in increased natural resource damages; and (5) The costs of the action are not unreasonable. (b) If response actions are still underway, trustees must coordinate with the On-Scene Coordinator (OSC), consistent with the NCP, to ensure that emergency restoration actions will not interfere with or duplicate ongoing response actions. Emergency restoration may not address residual oil unless: (1) The OSC's response is complete; or (2) The OSC has determined that the residual oil identified by the trustee as part of a proposed emergency restoration action does not merit further response. (c) Trustees must provide notice to identified responsible parties of any emergency restoration actions and, to the extent time permits, invite their participation in the conduct of those actions as provided in § 990.14(c) of this part. (d) Trustees must provide notice to the public, to the extent practicable, of these planned emergency restoration actions. Trustees must also provide public notice of the justification for, nature and extent of, and results of emergency restoration actions within a reasonable time frame after completion of such actions. The means by which this notice is provided is left to the discretion of the trustee. | |||
| 15:15:4.1.2.5.22.2.33.8 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | B | Subpart B—Authorities | § 990.27 Use of assessment procedures. | NOAA | (a) Standards for assessment procedures. Any procedures used pursuant to this part must comply with all of the following standards if they are to be in accordance with this part: (1) The procedure must be capable of providing assessment information of use in determining the type and scale of restoration appropriate for a particular injury; (2) The additional cost of a more complex procedure must be reasonably related to the expected increase in the quantity and/or quality of relevant information provided by the more complex procedure; and (3) The procedure must be reliable and valid for the particular incident. (b) Assessment procedures available. (1) The range of assessment procedures available to trustees includes, but is not limited to: (i) Procedures conducted in the field; (ii) Procedures conducted in the laboratory; (iii) Model-based procedures, including type A procedures identified in 43 CFR part 11, subpart D, and compensation formulas/schedules; and (iv) Literature-based procedures. (2) Trustees may use the assessment procedures in paragraph (b)(1) of this section alone, or in any combination, provided that the standards in paragraph (a) of this section are met, and there is no double recovery. (c) Selecting assessment procedures. (1) When selecting assessment procedures, trustees must consider, at a minimum: (i) The range of procedures available under paragraph (b) of this section; (ii) The time and cost necessary to implement the procedures; (iii) The potential nature, degree, and spatial and temporal extent of the injury; (iv) The potential restoration actions for the injury; and (v) The relevance and adequacy of information generated by the procedures to meet information requirements of restoration planning. (2) If a range of assessment procedures providing the same type and quality of information is available, the most cost-effective procedure must be used. | ||||
| 15:15:4.1.2.5.22.3.33.1 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | C | Subpart C—Definitions | § 990.30 Definitions. | NOAA | [61 FR 500, Jan. 5, 1996, as amended at 67 FR 61493, Oct. 1, 2002] | For the purpose of this rule, the term: Baseline means the condition of the natural resources and services that would have existed had the incident not occurred. Baseline data may be estimated using historical data, reference data, control data, or data on incremental changes (e.g., number of dead animals), alone or in combination, as appropriate. Cost-effective means the least costly activity among two or more activities that provide the same or a comparable level of benefits, in the judgment of the trustees. CEQ regulations means the Council on Environmental Quality regulations implementing NEPA, 40 CFR chapter V. Damages means damages specified in section 1002(b) of OPA (33 U.S.C. 1002(b)), and includes the costs of assessing these damages, as defined in section 1001(5) of OPA (33 U.S.C. 2701(5)). Discharge means any emission (other than natural seepage), intentional or unintentional, and includes, but is not limited to, spilling, leaking, pumping, pouring, emitting, emptying, or dumping, as defined in section 1001(7) of OPA (33 U.S.C. 2701(7)). Exclusive Economic Zone means the zone established by Presidential Proclamation 5030 of March 10, 1983 (3 CFR, 1984 Comp., p. 22), including the ocean waters of the areas referred to as “eastern special areas” in Article 3(1) of the Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, as defined in section 1001(8) of OPA (33 U.S.C. 2701(8)). Exposure means direct or indirect contact with the discharged oil. Facility means any structure, group of structures, equipment, or device (other than a vessel) which is used for one or more of the following purposes: exploring for, drilling for, producing, storing, handling, transferring, processing, or transporting oil. This term includes any motor vehicle, rolling stock, or pipeline used for one or more of these purposes, as defined in section 1001(9) of OPA (33 U.S.C. 2701(9)). Fund means the Oil Spill Liability Trust Fund, es… | |||
| 15:15:4.1.2.5.22.4.33.1 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | D | Subpart D—Preassessment Phase | § 990.40 Purpose. | NOAA | The purpose of this subpart is to provide a process by which trustees determine if they have jurisdiction to pursue restoration under OPA and, if so, whether it is appropriate to do so. | ||||
| 15:15:4.1.2.5.22.4.33.2 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | D | Subpart D—Preassessment Phase | § 990.41 Determination of jurisdiction. | NOAA | (a) Determination of jurisdiction. Upon learning of an incident, trustees must determine whether there is jurisdiction to pursue restoration under OPA. To make this determination, trustees must decide if: (1) An incident has occurred, as defined in § 990.30 of this part; (2) The incident is not: (i) Permitted under a permit issued under federal, state, or local law; or (ii) From a public vessel; or (iii) From an onshore facility subject to the Trans-Alaska Pipeline Authority Act, 43 U.S.C. 1651, et seq.; and (3) Natural resources under the trusteeship of the trustee may have been, or may be, injured as a result of the incident. (b) Proceeding with preassessment. If the conditions listed in paragraph (a) of this section are met, trustees may proceed under this part. If one of the conditions is not met, trustees may not take additional action under this part, except action to finalize this determination. Trustees may recover all reasonable assessment costs incurred up to this point provided that conditions in paragraphs (a)(1) and (a)(2) of this section were met and actions were taken with the reasonable belief that natural resources or services under their trusteeship might have been injured as a result of the incident. | ||||
| 15:15:4.1.2.5.22.4.33.3 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | D | Subpart D—Preassessment Phase | § 990.42 Determination to conduct restoration planning. | NOAA | (a) Determination on restoration planning. If trustees determine that there is jurisdiction to pursue restoration under OPA, trustees must determine whether: (1) Injuries have resulted, or are likely to result, from the incident; (2) Response actions have not adequately addressed, or are not expected to address, the injuries resulting from the incident; and (3) Feasible primary and/or compensatory restoration actions exist to address the potential injuries. (b) Proceeding with preassessment. If the conditions listed in paragraph (a) of this section are met, trustees may proceed under § 990.44 of this part. If one of these conditions is not met, trustees may not take additional action under this part, except action to finalize this determination. However, trustees may recover all reasonable assessment costs incurred up to this point. | ||||
| 15:15:4.1.2.5.22.4.33.4 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | D | Subpart D—Preassessment Phase | § 990.43 Data collection. | NOAA | Trustees may conduct data collection and analyses that are reasonably related to Preassessment Phase activities. Data collection and analysis during the Preassessment Phase must be coordinated with response actions such that collection and analysis does not interfere with response actions. Trustees may collect and analyze the following types of data during the Preassessment Phase: (a) Data reasonably expected to be necessary to make a determination of jurisdiction under § 990.41 of this part, or a determination to conduct restoration planning under § 990.42 of this part; (b) Ephemeral data; and (c) Information needed to design or implement anticipated assessment procedures under subpart E of this part. | ||||
| 15:15:4.1.2.5.22.4.33.5 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | D | Subpart D—Preassessment Phase | § 990.44 Notice of Intent to Conduct Restoration Planning. | NOAA | (a) General. If trustees determine that all the conditions under § 990.42(a) of this part are met and trustees decide to proceed with the natural resource damage assessment, they must prepare a Notice of Intent to Conduct Restoration Planning. (b) Contents of the notice. The Notice of Intent to Conduct Restoration Planning must include a discussion of the trustees' analyses under §§ 990.41 and 990.42 of this part. Depending on information available at this point, the notice may include the trustees' proposed strategy to assess injury and determine the type and scale of restoration. The contents of a notice may vary, but will typically discuss: (1) The facts of the incident; (2) Trustee authority to proceed with the assessment; (3) Natural resources and services that are, or are likely to be, injured as a result of the incident; (4) Potential restoration actions relevant to the expected injuries; and (5) If determined at the time, potential assessment procedures to evaluate the injuries and define the appropriate type and scale of restoration for the injured natural resources and services. (c) Public availability of the notice. Trustees must make a copy of the Notice of Intent to Conduct Restoration Planning publicly available. The means by which the notice is made publicly available and whether public comments are solicited on the notice will depend on the nature and extent of the incident and various information requirements, and is left to the discretion of the trustees. (d) Delivery of the notice to the responsible parties. Trustees must send a copy of the notice to the responsible parties, to the extent known, in such a way as will establish the date of receipt, and invite responsible parties' participation in the conduct of restoration planning. Consistent with § 990.14(c) of this part, the determination of the timing, nature, and extent of responsible party participation will be determined by the trustees on an incident-specific basis. | ||||
| 15:15:4.1.2.5.22.4.33.6 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | D | Subpart D—Preassessment Phase | § 990.45 Administrative record. | NOAA | (a) If trustees decide to proceed with restoration planning, they must open a publicly available administrative record to document the basis for their decisions pertaining to restoration. The administrative record should be opened concurrently with the publication of the Notice of Intent to Conduct Restoration Planning. Depending on the nature and extent of the incident and assessment, the administrative record should include documents relied upon during the assessment, such as: (1) Any notice, draft and final restoration plans, and public comments; (2) Any relevant data, investigation reports, scientific studies, work plans, quality assurance plans, and literature; and (3) Any agreements, not otherwise privileged, among the participating trustees or with the responsible parties. (b) Federal trustees should maintain the administrative record in a manner consistent with the Administrative Procedure Act, 5 U.S.C. 551-59, 701-06. | ||||
| 15:15:4.1.2.5.22.5.33.1 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | E | Subpart E—Restoration Planning Phase | § 990.50 Purpose. | NOAA | The purpose of this subpart is to provide a process by which trustees evaluate and quantify potential injuries (injury assessment), and use that information to determine the need for and scale of restoration actions (restoration selection). | ||||
| 15:15:4.1.2.5.22.5.33.2 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | E | Subpart E—Restoration Planning Phase | § 990.51 Injury assessment—injury determination. | NOAA | (a) General. After issuing a Notice of Intent to Conduct Restoration Planning under § 990.44 of this part, trustees must determine if injuries to natural resources and/or services have resulted from the incident. (b) Determining injury. To make the determination of injury, trustees must evaluate if: (1) The definition of injury has been met, as defined in § 990.30 of this part; and (2)(i) An injured natural resource has been exposed to the discharged oil, and a pathway can be established from the discharge to the exposed natural resource; or (ii) An injury to a natural resource or impairment of a natural resource service has occurred as a result of response actions or a substantial threat of a discharge of oil. (c) Identifying injury. Trustees must determine whether an injury has occurred and, if so, identify the nature of the injury. Potential categories of injury include, but are not limited to, adverse changes in: survival, growth, and reproduction; health, physiology and biological condition; behavior; community composition; ecological processes and functions; physical and chemical habitat quality or structure; and public services. (d) Establishing exposure and pathway. Except for injuries resulting from response actions or incidents involving a substantial threat of a discharge of oil, trustees must establish whether natural resources were exposed, either directly or indirectly, to the discharged oil from the incident, and estimate the amount or concentration and spatial and temporal extent of the exposure. Trustees must also determine whether there is a pathway linking the incident to the injuries. Pathways may include, but are not limited to, the sequence of events by which the discharged oil was transported from the incident and either came into direct physical contact with a natural resource, or caused an indirect injury. (e) Injuries resulting from response actions or incidents involving a substantial threat of a discharge. For injuries resulting from response actions or incidents invol… | ||||
| 15:15:4.1.2.5.22.5.33.3 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | E | Subpart E—Restoration Planning Phase | § 990.52 Injury assessment—quantification. | NOAA | (a) General. In addition to determining whether injuries have resulted from the incident, trustees must quantify the degree, and spatial and temporal extent of such injuries relative to baseline. (b) Quantification approaches. Trustees may quantify injuries in terms of: (1) The degree, and spatial and temporal extent of the injury to a natural resource; (2) The degree, and spatial and temporal extent of injury to a natural resource, with subsequent translation of that adverse change to a reduction in services provided by the natural resource; or (3) The amount of services lost as a result of the incident. (c) Natural recovery. To quantify injury, trustees must estimate, quantitatively or qualitatively, the time for natural recovery without restoration, but including any response actions. The analysis of natural recovery may consider such factors as: (1) The nature, degree, and spatial and temporal extent of injury; (2) The sensitivity and vulnerability of the injured natural resource and/or service; (3) The reproductive and recruitment potential; (4) The resistance and resilience (stability) of the affected environment; (5) The natural variability; and (6) The physical/chemical processes of the affected environment. | ||||
| 15:15:4.1.2.5.22.5.33.4 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | E | Subpart E—Restoration Planning Phase | § 990.53 Restoration selection—developing restoration alternatives. | NOAA | [61 FR 500, Jan. 5, 1996, as amended at 67 FR 61493, Oct. 1, 2002] | (a) General. (1) If the information on injury determination and quantification under §§ 990.51 and 990.52 of this part and its relevance to restoration justify restoration, trustees may proceed with the Restoration Planning Phase. Otherwise, trustees may not take additional action under this part. However, trustees may recover all reasonable assessment costs incurred up to this point. (2) Trustees must consider a reasonable range of restoration alternatives before selecting their preferred alternative(s). Each restoration alternative is comprised of primary and/or compensatory restoration components that address one or more specific injury(ies) associated with the incident. Each alternative must be designed so that, as a package of one or more actions, the alternative would make the environment and public whole. Only those alternatives considered technically feasible and in accordance with applicable laws, regulations, or permits may be considered further under this part. (b) Primary restoration —(1) General. For each alternative, trustees must consider primary restoration actions, including a natural recovery alternative. (2) Natural recovery. Trustees must consider a natural recovery alternative in which no human intervention would be taken to directly restore injured natural resources and services to baseline. (3) Active primary restoration actions. Trustees must consider an alternative comprised of actions to directly restore the natural resources and services to baseline on an accelerated time frame. When identifying such active primary restoration actions, trustees may consider actions that: (i) Address conditions that would prevent or limit the effectiveness of any restoration action; (ii) May be necessary to return the physical, chemical, and/or biological conditions necessary to allow recovery or restoration of the injured natural resources (e.g., replacing substrate or vegetation, or modifying hydrologic conditions); or (iii) Return key natural resources and services, and would be an eff… | |||
| 15:15:4.1.2.5.22.5.33.5 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | E | Subpart E—Restoration Planning Phase | § 990.54 Restoration selection—evaluation of alternatives. | NOAA | (a) Evaluation standards. Once trustees have developed a reasonable range of restoration alternatives under § 990.53 of this part, they must evaluate the proposed alternatives based on, at a minimum: (1) The cost to carry out the alternative; (2) The extent to which each alternative is expected to meet the trustees' goals and objectives in returning the injured natural resources and services to baseline and/or compensating for interim losses; (3) The likelihood of success of each alternative; (4) The extent to which each alternative will prevent future injury as a result of the incident, and avoid collateral injury as a result of implementing the alternative; (5) The extent to which each alternative benefits more than one natural resource and/or service; and (6) The effect of each alternative on public health and safety. (b) Preferred restoration alternatives. Based on an evaluation of the factors under paragraph (a) of this section, trustees must select a preferred restoration alternative(s). If the trustees conclude that two or more alternatives are equally preferable based on these factors, the trustees must select the most cost-effective alternative. (c) Pilot projects. Where additional information is needed to identify and evaluate the feasibility and likelihood of success of restoration alternatives, trustees may implement restoration pilot projects. Pilot projects should only be undertaken when, in the judgment of the trustees, these projects are likely to provide the information, described in paragraph (a) of this section, at a reasonable cost and in a reasonable time frame. | ||||
| 15:15:4.1.2.5.22.5.33.6 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | E | Subpart E—Restoration Planning Phase | § 990.55 Restoration selection—developing restoration plans. | NOAA | (a) General. OPA requires that damages be based upon a plan developed with opportunity for public review and comment. To meet this requirement, trustees must, at a minimum, develop a Draft and Final Restoration Plan, with an opportunity for public review of and comment on the draft plan. (b) Draft Restoration Plan. (1) The Draft Restoration Plan should include: (i) A summary of injury assessment procedures used; (ii) A description of the nature, degree, and spatial and temporal extent of injuries resulting from the incident; (iii) The goals and objectives of restoration; (iv) The range of restoration alternatives considered, and a discussion of how such alternatives were developed under § 990.53 of this part, and evaluated under § 990.54 of this part; (v) Identification of the trustees' tentative preferred alternative(s); (vi) A description of past and proposed involvement of the responsible parties in the assessment; and (vii) A description of monitoring for documenting restoration effectiveness, including performance criteria that will be used to determine the success of restoration or need for interim corrective action. (2) When developing the Draft Restoration Plan, trustees must establish restoration objectives that are specific to the injuries. These objectives should clearly specify the desired outcome, and the performance criteria by which successful restoration will be judged. Performance criteria may include structural, functional, temporal, and/or other demonstrable factors. Trustees must, at a minimum, determine what criteria will: (i) Constitute success, such that responsible parties are relieved of responsibility for further restoration actions; or (ii) Necessitate corrective actions in order to comply with the terms of a restoration plan or settlement agreement. (3) The monitoring component to the Draft Restoration Plan should address such factors as duration and frequency of monitoring needed to gauge progress and success, level of sampling needed to detect success or the need for … | ||||
| 15:15:4.1.2.5.22.5.33.7 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | E | Subpart E—Restoration Planning Phase | § 990.56 Restoration selection—use of a Regional Restoration Plan or existing restoration project. | NOAA | (a) General. Trustees may consider using a Regional Restoration Plan or existing restoration project where such a plan or project is determined to be the preferred alternative among a range of feasible restoration alternatives for an incident, as determined under § 990.54 of this part. Such plans or projects must be capable of fulfilling OPA's intent for the trustees to restore, rehabilitate, replace, or acquire the equivalent of the injured natural resources and services and compensate for interim losses. (b) Existing plans or projects —(1) Considerations. Trustees may select a component of a Regional Restoration Plan or an existing restoration project as the preferred alternative, provided that the plan or project: (i) Was developed with public review and comment or is subject to public review and comment under this part; (ii) Will adequately compensate the environment and public for injuries resulting from the incident; (iii) Addresses, and is currently relevant to, the same or comparable natural resources and services as those identified as having been injured; and (iv) Allows for reasonable scaling relative to the incident. (2) Demand. (i) If the conditions of paragraph (b)(1) of this section are met, the trustees must invite the responsible parties to implement that component of the Regional Restoration Plan or existing restoration project, or advance to the trustees the trustees' reasonable estimate of the cost of implementing that component of the Regional Restoration Plan or existing restoration project. (ii) If the conditions of paragraph (b)(1) of this section are met, but the trustees determine that the scale of the existing plan or project is greater than the scale of compensation required by the incident, trustees may only request funding from the responsible parties equivalent to the scale of the restoration determined to be appropriate for the incident of concern. Trustees may pool such partial recoveries until adequate funding is available to successfully implement the existing plan… | ||||
| 15:15:4.1.2.5.22.6.33.1 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | F | Subpart F—Restoration Implementation Phase | § 990.60 Purpose. | NOAA | The purpose of this subpart is to provide a process for implementing restoration. | ||||
| 15:15:4.1.2.5.22.6.33.2 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | F | Subpart F—Restoration Implementation Phase | § 990.61 Administrative record. | NOAA | (a) Closing the administrative record for restoration planning. Within a reasonable time after the trustees have completed restoration planning, as provided in §§ 990.55 and 990.56 of this part, they must close the administrative record. Trustees may not add documents to the administrative record once it is closed, except where such documents: (1) Are offered by interested parties that did not receive actual or constructive notice of the Draft Restoration Plan and the opportunity to comment on the plan; (2) Do not duplicate information already contained in the administrative record; and (3) Raise significant issues regarding the Final Restoration Plan. (b) Opening an administrative record for restoration implementation. Trustees may open an administrative record for implementation of restoration, as provided in § 990.45 of this part. The costs associated with the administrative record are part of the costs of restoration. Ordinarily, the administrative record for implementation of restoration should document, at a minimum, all Restoration Implementation Phase decisions, actions, and expenditures, including any modifications made to the Final Restoration Plan. | ||||
| 15:15:4.1.2.5.22.6.33.3 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | F | Subpart F—Restoration Implementation Phase | § 990.62 Presenting a demand. | NOAA | [61 FR 500, Jan. 5, 1996, as amended at 67 FR 61493, Oct. 1, 2002] | (a) General. After closing the administrative record for restoration planning, trustees must present a written demand to the responsible parties. Delivery of the demand should be made in a manner that establishes the date of receipt by the responsible parties. (b) When a Final Restoration Plan has been developed. Except as provided in paragraph (c) of this section and in § 990.14(c) of this part, the demand must invite the responsible parties to either: (1) Implement the Final Restoration Plan subject to trustee oversight and reimburse the trustees for their assessment and oversight costs; or (2) Advance to the trustees a specified sum representing all trustee direct and indirect costs of assessment and restoration, discounted as provided in § 990.63(a) of this part. (c) Regional Restoration Plan or existing restoration project. When the trustees use a Regional Restoration Plan or an existing restoration project under § 990.56 of this part, the demand will invite the responsible parties to implement a component of a Regional Restoration Plan or existing restoration project, or advance the trustees' estimate of damages based on the scale of the restoration determined to be appropriate for the incident of concern, which may be the entire project or a portion thereof. (d) Response to demand. The responsible parties must respond within ninety (90) calendar days in writing by paying or providing binding assurance they will reimburse trustees' assessment costs and implement the plan or pay assessment costs and the trustees' estimate of the costs of implementation. (e) Additional contents of demand. The demand must also include: (1) Identification of the incident from which the claim arises; (2) Identification of the trustee(s) asserting the claim and a statement of the statutory basis for trusteeship; (3) A brief description of the injuries for which the claim is being brought; (4) An index to the administrative record; (5) The Final Restoration Plan or Notice of Intent to Use a Regional Restoratio… | |||
| 15:15:4.1.2.5.22.6.33.4 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | F | Subpart F—Restoration Implementation Phase | § 990.63 Discounting and compounding. | NOAA | (a) Estimated future restoration costs. When determining estimated future costs of implementing a Final Restoration Plan, trustees must discount such future costs back to the date the demand is presented. Trustees may use a discount rate that represents the yield on recoveries available to trustees. The price indices used to project future inflation should reflect the major components of the restoration costs. (b) Past assessment and emergency restoration costs. When calculating the present value of assessment and emergency restoration costs already incurred, trustees must compound the costs forward to the date the demand is presented. To perform the compounding, trustees may use the actual U.S. Treasury borrowing rate on marketable securities of comparable maturity to the period of analysis. For costs incurred by state or tribal trustees, trustees may compound using parallel state or tribal borrowing rates. (c) Trustees are referred to Appendices B and C of OMB Circular A-94 for information about U.S. Treasury rates of various maturities and guidance in calculation procedures. Copies of Appendix C, which is regularly updated, and of the Circular are available from the OMB Publications Office (202-395-7332). | ||||
| 15:15:4.1.2.5.22.6.33.5 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | F | Subpart F—Restoration Implementation Phase | § 990.64 Unsatisfied demands. | NOAA | [61 FR 500, Jan. 5, 1996, as amended at 67 FR 61493, Oct. 1, 2002] | (a) If the responsible parties do not agree to the demand within ninety (90) calendar days after trustees present the demand, the trustees may either file a judicial action for damages or present the uncompensated claim for damages to the Oil Spill Liability Trust Fund, as provided in section 1012(a)(4) of OPA (33 U.S.C. 2712(a)(4)) or seek an appropriation from the Oil Spill Liability Trust Fund as provided in section 1012(a)(2) of OPA (33 U.S.C. 2712(a)(2)). (b) Judicial actions and claims must be filed within three (3) years after the Final Restoration Plan or Notice of Intent to Use a Regional Restoration Plan or Existing Restoration Project is made publicly available, in accordance with 33 U.S.C. 2717(f)(1)(B) and 2712(h)(2). | |||
| 15:15:4.1.2.5.22.6.33.6 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | F | Subpart F—Restoration Implementation Phase | § 990.65 Opening an account for recovered damages. | NOAA | (a) General. Sums recovered by trustees in satisfaction of a natural resource damage claim must be placed in a revolving trust account. Sums recovered for past assessment costs and emergency restoration costs may be used to reimburse the trustees. All other sums must be used to implement the Final Restoration Plan or all or an appropriate component of a Regional Restoration Plan or an existing restoration project. (b) Joint trustee recoveries —(1) General. Trustees may establish a joint account for damages recovered pursuant to joint assessment activities, such as an account under the registry of the applicable federal court. (2) Management. Trustees may develop enforceable agreements to govern management of joint accounts, including agreed-upon criteria and procedures, and personnel for authorizing expenditures out of such joint accounts. (c) Interest-bearing accounts. Trustees may place recoveries in interest-bearing revolving trust accounts, as provided by section 1006(f) of OPA (33 U.S.C. 2706(f)). Interest earned on such accounts may only be used for restoration. (d) Escrow accounts. Trustees may establish escrow accounts or other investment accounts. (e) Records. Trustees must maintain appropriate accounting and reporting procedures to document expenditures from accounts established under this section. (f) Oil Spill Liability Trust Fund. Any sums remaining in an account established under this section that are not used either to reimburse trustees for past assessment and emergency restoration costs or to implement restoration must be deposited in the Oil Spill Liability Trust Fund, as provided by section 1006(f) of OPA (33 U.S.C. 2706(f)). | ||||
| 15:15:4.1.2.5.22.6.33.7 | 15 | Commerce and Foreign Trade | IX | E | 990 | PART 990—NATURAL RESOURCE DAMAGE ASSESSMENTS | F | Subpart F—Restoration Implementation Phase | § 990.66 Additional considerations. | NOAA | (a) Upon settlement of a claim, trustees should consider the following actions to facilitate implementation of restoration: (1) Establish a trustee committee and/or memorandum of understanding or other agreement to coordinate among affected trustees, as provided in § 990.14(a)(3) of this part; (2) Develop more detailed workplans to implement restoration; (3) Monitor and oversee restoration; and (4) Evaluate restoration success and the need for corrective action. (b) The reasonable costs of such actions are included as restoration costs. |
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