[Code of Federal Regulations]
[Title 15, Volume 3]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 15CFR990.30]

[Page 382-385]
 
                  TITLE 15--COMMERCE AND FOREIGN TRADE
 
CHAPTER IX--NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT 
                               OF COMMERCE
 
PART 990--NATURAL RESOURCE DAMAGE ASSESSMENTS--Table of Contents
 
                         Subpart C--Definitions
 
Sec. 990.30  Definitions.


    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:

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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, established by 
section 9509 of the Internal Revenue Code of 1986 (26 U.S.C. 9509), as 
defined in section 1001(11) of OPA (33 U.S.C. 2701(11)).
    Incident means any occurrence or series of occurrences having the 
same origin, involving one or more vessels, facilities, or any 
combination thereof, resulting in the discharge or substantial threat of 
discharge of oil into or upon navigable waters or adjoining shorelines 
or the Exclusive Economic Zone, as defined in section 1001(14) of OPA 
(33 U.S.C. 2701(14)).
    Indian tribe (or tribal) means any Indian tribe, band, nation, or 
other organized group or community, but not including any Alaska Native 
regional or village corporation, which is recognized as eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians and has governmental authority over 
lands belonging to or controlled by the tribe, as defined in section 
1001(15) of OPA (33 U.S.C. 2701(15)).
    Indirect costs means expenses that are jointly or commonly incurred 
to produce two or more products or services. In contrast to direct 
costs, indirect costs are not specifically identifiable with any of the 
products or services, but are necessary for the organization to function 
and produce the products or services. An indirect cost rate, developed 
in accordance with generally accepted accounting principles, may be used 
to allocate indirect costs to specific assessment and restoration 
activities. Both direct and indirect costs contribute to the full cost 
of the assessment and restoration, as provided in this part.
    Injury means an observable or measurable adverse change in a natural 
resource or impairment of a natural resource service. Injury may occur 
directly or indirectly to a natural resource and/or service. Injury 
incorporates the terms ``destruction,'' ``loss,'' and ``loss of use'' as 
provided in OPA.
    Lead Administrative Trustee(s) (or LAT) means the trustee(s) who is 
selected by all participating trustees whose natural resources or 
services are injured by an incident, for the purpose of coordinating 
natural resource damage assessment activities. The LAT(s) should also 
facilitate communication between the OSC and other natural resource 
trustees regarding their activities during the response phase.
    Legal costs means the costs of attorney actions performed for the 
purpose of assessment or developing a restoration plan, in accordance 
with this part.
    (1) When making a determination of the nature of attorneys' actions 
for purposes of this definition, trustees must consider whether:
    (i) The action comprised all or part of an action specified either 
in this part or in OPA section 1006(c);
    (ii) The action was performed prior to, or in the absence of, the 
filing of ligation by or on behalf of the trustee in question to recover 
damages; and
    (iii) The action was performed by an attorney who was working for or 
on behalf of the trustee agency, as opposed to a prosecutorial agency.
    (2) If all of the criteria in paragraph (1) of this definition are 
met, the costs associated with attorney's actions are deemed assessment 
costs. If the criteria are not met, the trustee must explain why the 
action was not performed for the primary purpose of furthering 
litigation in order to support a characterization of the action as an 
assessment action.
    (3) Examples of common or routine assessment actions that may be 
most appropriately performed by trustee attorneys, in accordance with 
this part, include, but are not limited to:
    (i) Providing written and oral advice on the requirements of OPA, 
this part, and other applicable laws;
    (ii) Preparing public notices, including the Notice of Intent to 
Conduct Restoration Planning issued to responsible parties and the 
Notice of Availability of Draft Restoration Plans;
    (iii) Developing and managing administrative records;
    (iv) Preparing binding agreements with potentially responsible 
parties in

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the context of the assessment, including study agreements, funding 
agreements, and restoration agreements;
    (v) Preparing co-trustee cooperative agreements;
    (vi) Preparing formal trustee determinations required under this 
part; and
    (vii) Procuring title searches, title insurance, and/or conservation 
easements when property agreements are part of restoration packages.
    NCP means the National Oil and Hazardous Substances Pollution 
Contingency Plan (National Contingency Plan) codified at 40 CFR part 
300, which addresses the identification, investigation, study, and 
response to incidents, as defined in section 1001(19) of OPA (33 U.S.C. 
2701(19)).
    Natural resource damage assessment (or assessment) means the process 
of collecting and analyzing information to evaluate the nature and 
extent of injuries resulting from an incident, and determine the 
restoration actions needed to bring injured natural resources and 
services back to baseline and make the environment and public whole for 
interim losses.
    Natural resources means land, fish, wildlife, biota, air, water, 
ground water, drinking water supplies, and other such resources 
belonging to, managed by, held in trust by, appertaining to, or 
otherwise controlled by the United States (including the resources of 
the Exclusive Economic Zone), any state or local government or Indian 
tribe, or any foreign government, as defined in section 1001(20) of OPA 
(33 U.S.C. 2701(20)).
    Navigable waters means the waters of the United States, including 
the territorial sea, as defined in section 1001(21) of OPA (33 U.S.C. 
2701(21)).
    NEPA means the National Environmental Policy Act, 42 U.S.C. 4321 et 
seq.
    Oil means oil of any kind or in any form, including, but not limited 
to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes 
other than dredged spoil. However, the term does not include petroleum, 
including crude oil or any fraction thereof, that is specifically listed 
or designated as a hazardous substance under 42 U.S.C. 9601(14)(A) 
through (F), as defined in section 1001(23) of OPA (33 U.S.C. 2701(23)).
    On-Scene Coordinator (or OSC) means the official designated by the 
U.S. Environmental Protection Agency or the U.S. Coast Guard to 
coordinate and direct response actions under the NCP, or the government 
official designated by the lead response agency to coordinate and direct 
response actions under the NCP.
    OPA means the Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq.
    Pathway means any link that connects the incident to a natural 
resource and/or service, and is associated with an actual discharge of 
oil.
    Person means an individual, corporation, partnership, association, 
state, municipality, commission, or political subdivision of a state, or 
any interstate body, as defined in section 1001(27) of OPA (33 U.S.C. 
2701(27)).
    Public vessel means a vessel owned or bareboat chartered and 
operated by the United States, or by a state or political subdivision 
thereof, or by a foreign nation, except when the vessel is engaged in 
commerce, as defined in section 1001(29) of OPA (33 U.S.C. 2701(29)).
    Reasonable assessment costs means, for assessments conducted under 
this part, assessment costs that are incurred by trustees in accordance 
with this part. In cases where assessment costs are incurred but 
trustees do not pursue restoration, trustees may recover their 
reasonable assessment costs provided they have determined that 
assessment actions undertaken were premised on the likelihood of injury 
and need for restoration. Reasonable assessment costs also include: 
administrative costs, legal costs, and other costs necessary to carry 
out this part; monitoring and oversight costs; costs associated with 
public participation; and indirect costs that are necessary to carry out 
this part.
    Recovery means the return of injured natural resources and services 
to baseline.
    Response (or remove or removal) means containment and removal of oil 
or a hazardous substance from water and shorelines or the taking of 
other actions as may be necessary to minimize or mitigate damage to the 
public health or welfare, including, but not limited to, fish, 
shellfish, wildlife, and public and private property, shorelines,

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and beaches, as defined in section 1001(30) of OPA (33 U.S.C. 2701(30)).
    Responsible party means:
    (a) Vessels. In the case of a vessel, any person owning, operating, 
or demise chartering the vessel.
    (b) Onshore facilities. In the case of an onshore facility (other 
than a pipeline), any person owning or operating the facility, except a 
federal agency, state, municipality, commission, or political 
subdivision of a state, or any interstate body, that as the owner 
transfers possession and right to use the property to another person by 
lease, assignment, or permit.
    (c) Offshore facilities. In the case of an offshore facility (other 
than a pipeline or a deepwater port licensed under the Deepwater Port 
Act of 1974 (33 U.S.C. 1501 et seq.)), the lessee or permittee of the 
area in which the facility is located or the holder of a right of use 
and easement granted under applicable state law or the Outer Continental 
Shelf Lands Act (43 U.S.C. 1301-1356) for the area in which the facility 
is located (if the holder is a different person than the lessee or 
permittee), except a federal agency, state, municipality, commission, or 
political subdivision of a state, or any interstate body, that as owner 
transfers possession and right to use the property to another person by 
lease, assignment, or permit.
    (d) Deepwater ports. In the case of a deepwater port licensed under 
the Deepwater Port Act of 1974 (33 U.S.C. 1501-1524), the licensee.
    (e) Pipelines. In the case of a pipeline, any person owning or 
operating the pipeline.
    (f) Abandonment. In the case of an abandoned vessel, onshore 
facility, deepwater port, pipeline, or offshore facility, the persons 
who would have been responsible parties immediately prior to the 
abandonment of the vessel or facility, as defined in section 1001(32) of 
OPA (33 U.S.C. 2701(32)).
    Restoration means any action (or alternative), or combination of 
actions (or alternatives), to restore, rehabilitate, replace, or acquire 
the equivalent of injured natural resources and services. Restoration 
includes:
    (a) Primary restoration, which is any action, including natural 
recovery, that returns injured natural resources and services to 
baseline; and
    (b) Compensatory restoration, which is any action taken to 
compensate for interim losses of natural resources and services that 
occur from the date of the incident until recovery.
    Services (or natural resource services) means the functions 
performed by a natural resource for the benefit of another natural 
resource and/or the public.
    Trustees (or natural resource trustees) means those officials of the 
federal and state governments, of Indian tribes, and of foreign 
governments, designated under 33 U.S.C. 2706(b) of OPA.
    United States and State means the several States of the United 
States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, 
American Samoa, the United States Virgin Islands, the Commonwealth of 
the Northern Marianas, and any other territory or possession of the 
United States, as defined in section 1001(36) of OPA (33 U.S.C. 
2701(36)).
    Value means the maximum amount of goods, services, or money an 
individual is willing to give up to obtain a specific good or service, 
or the minimum amount of goods, services, or money an individual is 
willing to accept to forgo a specific good or service. The total value 
of a natural resource or service includes the value individuals derive 
from direct use of the natural resource, for example, swimming, boating, 
hunting, or birdwatching, as well as the value individuals derive from 
knowing a natural resource will be available for future generations.
    Vessel means every description of watercraft or other artificial 
contrivance used, or capable of being used, as a means of transportation 
on water, other than a public vessel, as defined in section 1001(37) of 
OPA (33 U.S.C. 2701(37)).

[61 FR 500, Jan. 5, 1996, as amended at 67 FR 61493, Oct. 1, 2002]

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