[Code of Federal Regulations]

[Title 15, Volume 3]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 15CFR990.30]



[Page 385-388]

 

                  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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