Claims Procedures Under the Oil Pollution Act of 1990, 67385-67395 [2011-28189]

Agencies

• Coast Guard
• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 76, Number 211 (Tuesday, November 1, 2011)]
[Proposed Rules]
[Pages 67385-67395]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-28189]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 135 and 136

[USCG-2004-17697]
RIN 1625-AA03


Claims Procedures Under the Oil Pollution Act of 1990

AGENCY: Coast Guard, DHS.

ACTION: Notice of inquiry.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is developing a supplemental notice of 
proposed rulemaking (SNPRM) to finalize a 1992 interim rule that set 
forth the Oil Pollution Act of 1990 (OPA'90) claims procedures and 
removed certain conflicting and superseded regulations from the Code of 
Federal Regulations. Before publishing the SNPRM, the Coast Guard is 
inviting members of the public to respond to questions and offer 
comments on their experience to date with the OPA'90 claims procedures 
and on whether additional pre-OPA'90 rules should be removed from the 
Code of Federal Regulations. The Coast Guard is also inviting the 
public to provide background information and cost data that will better 
inform the regulatory assessment for this rulemaking.

DATES: Comments and related material must either be submitted to our 
online docket via https://www.regulations.gov on or before January 30, 
2012, or reach the Docket Management Facility by that date.

ADDRESSES: You may submit comments identified by docket number USCG-
2004-17697 using any one of the following methods:
    (1) Federal eRulemaking Portal: https://www.regulations.gov.
    (2) Fax: (202) 493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is (202) 366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for additional instructions 
on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
notice, call or email Benjamin H. White, National Pollution Funds 
Center, U.S. Coast Guard, telephone (202) 493-6863, email 
Benjamin.H.White@uscg.mil. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Abbreviations
II. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing the Comments and Supplemental Materials in the Public 
Docket
    C. Privacy Act
III. Background
    A. Overview of the OPA'90 Liability and Compensation Statutory 
Scheme
    B. Repeal by OPA'90 of Title III of the Outer Continental Shelf 
Lands Act Amendments of 1978
    C. Regulatory History
    1. Interim Rule

[[Page 67386]]

    a. OPA'90 Claims Procedures
    b. OCSLAA Rule Amendments
    2. 1992 Comments on the Interim Rule
    3. Subsequent Corrections, Amendments and Rulemakings
IV. Purpose of the Notice of Inquiry
    A. Scope of the Notice of Inquiry
    B. Some of the 1992 Comments Will Not Need To Be Addressed 
Further in This Rulemaking
    C. Information We Would Like You To Include in Your Comments
    D. How To Use the Comment Matrices
V. Notice of Inquiry Questions
    A. Questions Concerning Your Interest in the Rulemaking
    B. Questions Concerning the 1992 Comments on the Interim Rule
    C. Questions Concerning the Claims Procedures (33 CFR Part 136)
    1. Rule Organization and Other Clarifications to the Claims 
Procedures
    2. Claims Procedures Regulatory Deadlines
    3. Claims Submission Requirements
    4. Claims Determination and Reconsideration Procedures
    5. Distinguishing the Different Categories of Claims Due to 
Injury, Loss or Destruction to, or Loss of Use of, Natural Resources
    6. The Public Notice and Comment Exception for Certain Natural 
Resource Damage Trustee Claims
    7. Damage Assessment Costs
    8. Other Comments on the Claims Procedures for Different 
Categories of Claims
    9. Source Designations and Claims Advertising
    D. Questions Concerning Removal of the OCSLAA Rule (33 CFR Part 
135)
    E. Questions Concerning the Regulatory Analysis for This 
Rulemaking
    1. Claims Procedures (33 CFR Part 136)--Economic Analysis
    2. Claims Procedures (33 CFR Part 136)--Small Entities Analysis
    3. Removal of the OCSLAA Rule (33 CFR Part 135)--Economic 
Analysis
    4. Removal of the OCSLAA Rule (33 CFR Part 135)--Small Entities 
Analysis
    F. Other Issues

I. Abbreviations

1992 Comments The public comments on the Interim Rule, submitted 
during and shortly after the 120-day public comment period that 
followed publication of the Interim Rule, all of which are posted on 
the public docket for this rulemaking
CFR Code of Federal Regulations
Claims Procedures The OPA'90 regulatory procedures for designating 
oil spill sources and denying oil spill source designations, 
advertising for claims, and presenting, filing, processing, 
settling, and adjudicating OPA'90 claims against the Oil Spill 
Liability Trust Fund, published at 33 CFR part 136, subparts A 
through D
Document  The unique identifier number assigned by the 
Docket Management Facility to each document in the public docket for 
this rulemaking
E.O. Federal Executive Order
FR Federal Register
Fund or OSLTF The Oil Spill Liability Trust Fund, established by 26 
U.S.C. 9509
FWPCA Federal Water Pollution Control Act, 33 U.S.C. 1251-1387 
(2010)
Interim Rule The Coast Guard's interim rule, establishing the OPA'90 
Claims Procedures (33 CFR part 136) and amending the OCSLAA Rule (33 
CFR part 135) [57 FR 36316, August 12, 1992; 57 FR 41104, September 
9, 1992 (correction)]
NAICS North American Industry Classification System
NOI Notice of Inquiry
NPFC National Pollution Funds Center
OCS Outer Continental Shelf
OCSLAA Title III of the Outer Continental Shelf Lands Act Amendments 
of 1978, Pub. L. 95-372, 92 Stat. 629 (previously codified at 43 
U.S.C. 1811-1824; repealed August 18, 1990, by OPA'90 Section 2004 
(26 U.S.C. 9509 note))
OSCLAA Fund The Offshore Oil Spill Pollution Compensation Fund, 
established under OCSLAA Section 302 (previously codified at 43 
U.S.C. 1812; terminated by OPA'90 Section 2004 (26 U.S.C. 9509 
note))
OCSLAA Rule The OCSLAA regulations, published at 33 CFR part 135
OPA'90 The Oil Pollution Act of 1990, Pub. L. 101-380, 104 Stat. 484 
(August 18, 1990), as amended, Title I of which is codified at 33 
U.S.C. 2701, et seq. (2010)
SNPRM Supplemental notice of proposed rulemaking
U.S.C. United States Code
USCG or Coast Guard United States Coast Guard

II. Public Participation and Request for Comments

    We encourage you to submit comments and related material on the 
Interim Rule and to respond to the questions included below in Part V 
of this Notice of Inquiry. All comments received will be posted, 
without change, to https://www.regulations.gov, and will include any 
personal information you have provided.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
notice (USCG-2004-17697) and provide a reason for each suggestion or 
recommendation. We recommend that you include your name and a mailing 
address, an email address, and a telephone number in the body of your 
document so that we can contact you if we have questions regarding your 
submission. You may submit your comments and material online, or by 
fax, mail or hand delivery, but please use only one of these means.
    To submit your comments online, go to https://www.regulations.gov 
and type ``USCG-2004-17697'' in the ``Keyword'' box. Click ``Search'' 
then click on the balloon shape in the ``Actions'' column and enter 
your comment. If you submit your comments by mail or hand delivery, 
submit them in an unbound format, no larger than 8\1/2\ by 11 inches, 
suitable for copying and electronic filing. If you submit them by mail 
and would like to know that they reached the Docket Management 
Facility, please enclose a stamped, self-addressed postcard or 
envelope. We will consider all comments and material received during 
the comment period.

B. Viewing the Comments and Supplemental Materials in the Public Docket

    The public docket for this rulemaking contains the Interim Rule, 
the public comments submitted immediately following publication of the 
Interim Rule (1992 Comments), any public comments submitted in response 
to this Notice of Inquiry, and other supplemental materials concerning 
this rulemaking. To view the public docket for this rulemaking online 
go to https://www.regulations.gov, click on the ``read comments'' box, 
which will then become highlighted in blue. In the ``Keyword'' box 
insert ``USCG-2004-17697'' and click ``Search.'' Click the ``Open 
Docket Folder'' in the ``Actions'' column.
    If you do not have access to the Internet, you may view the docket 
online by visiting the Docket Management Facility in Room W12-140 on 
the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. We have an 
agreement with the Department of Transportation to use the Docket 
Management Facility.

C. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act system of 
records notice regarding our public dockets in the January 17, 2008, 
issue of the Federal Register (73 FR 3316).

III. Background

    The Coast Guard is developing a supplemental notice of proposed 
rulemaking (SNPRM) that will propose amendments to a 1992 interim rule, 
titled ``Claims Under the Oil Pollution Act of 1990'' (Interim Rule, 57 
FR 36316, August 12, 1992; 57 FR 41104, September 9, 1992 
(correction)). The Interim Rule established new procedures under Title 
I of the Oil Pollution Act of 1990 (OPA'90) (33 U.S.C. 2701, et seq.), 
at Title 33 of the

[[Page 67387]]

Code of Federal Regulations (CFR) part 136, for designating oil spill 
sources, denying source designations, advertising for claims, and 
presenting, filing, processing, settling, and adjudicating claims 
against the Oil Spill Liability Trust Fund (Claims Procedures). As 
explained further below, the Interim Rule also removed from the Code of 
Federal Regulations certain conflicting and superseded regulations that 
had been established under provisions of Federal law that were later 
revoked by OPA'90.
    A 120-day public comment period followed publication of the Interim 
Rule, and the public will have an opportunity to comment again on this 
rulemaking during the public comment period that will follow our 
publication of the SNPRM. Before publishing the SNPRM, however, the 
Coast Guard believes that additional input from interested members of 
the public would be very useful. This input will help the Coast Guard 
review the Interim Rule as it has been implemented since 1992, to 
determine whether the rule can be better tailored or streamlined to 
improve its effectiveness and reduce burden on the public.
    The Coast Guard is particularly interested in hearing the public's 
views of the Interim Rule based on the public's years of experience 
with the Claims Procedures, including recent experience arising from 
the 2010 DEEPWATER HORIZON spill of national significance. The Coast 
Guard, therefore, invites you to comment on the Interim Rule and the 
1992 Comments, based on your experience, and to respond to the other 
questions concerning this rulemaking set forth below in Part V of this 
Notice of Inquiry.
    The following statutory overview and regulatory background is 
provided to help you respond to this Notice of Inquiry.

A. Overview of the OPA'90 Liability and Compensation Statutory Scheme

    Under Title I of OPA'90, the responsible parties for a vessel or 
facility from which oil is discharged, or which poses the substantial 
threat of a discharge of oil, into or upon the navigable waters or 
adjoining shorelines or the exclusive economic zone of the United 
States, are strictly liable, jointly and severally, for the resulting 
oil removal costs and six categories of damages specified in OPA'90 (33 
U.S.C. 2702(b)), up to the applicable OPA'90 limit of liability.\1\
---------------------------------------------------------------------------

    \1\ The OPA'90 limits of liability, if they apply (see 
exceptions in 33 U.S.C. 2704(c)), can be found in 33 CFR part 138, 
subpart B for vessels and deepwater ports, and 33 U.S.C. 2704(a)(3) 
and (4) for offshore and onshore facilities. The limits of liability 
are subject to adjustment by regulation as provided under 33 U.S.C. 
2704(d).
---------------------------------------------------------------------------

    In addition, under OPA'90 (33 U.S.C. 2714), when an oil spill 
incident occurs, the President (acting through a Federal official) 
designates the source or sources of the discharge or threat, where 
possible and appropriate. If the source is a vessel or facility, the 
Federal official also notifies the responsible party and guarantor, if 
known, of the source designation. Thereafter, unless the responsible 
party or guarantor denies the source designation within 5 days after 
receiving the notice of designation, the responsible party or guarantor 
must begin advertising the source designation and the procedures for 
presenting claims for OPA'90 removal costs or damages. The 
advertisement must begin by no later than 15 days after the date of the 
source designation.
    Under certain circumstances, including if the responsible party and 
the guarantor both deny the source designation within 5 days after 
receiving the notice of designation, or fail to advertise, or if the 
Federal official is unable to designate the source or sources of the 
discharge or threat, the President (acting through the U.S. Coast 
Guard, National Pollution Funds Center (NPFC)) advertises or otherwise 
notifies potential claimants of the procedures by which claims for 
uncompensated OPA'90 removal costs and damages may be presented either 
to the responsible party or guarantor, or to the NPFC for payment by 
the Oil Spill Liability Trust Fund (the OSLTF or Fund). (See 33 U.S.C. 
2714(c).)
    OPA'90 also specifies the procedures claimants must follow to seek 
compensation for their removal costs and damages. OPA'90 (33 U.S.C. 
2713(a)) provides that ``Except as provided in subsection (b) of this 
section, all claims for removal costs or damages shall be presented 
first to the responsible party or guarantor of the source designated 
under section 2714(a) of this title.'' \2\ Thereafter, if the claim is 
denied by each person to whom the claim is presented (e.g., the 
responsible party or guarantor), or the claim is not settled by any 
person by payment within 90 days after the date the claim was presented 
or advertising was begun, whichever is later, the claimant may elect to 
commence an action in court against the responsible party or guarantor 
or to present a claim for the uncompensated removal costs and damages 
to the Fund. (33 U.S.C. 2713(c) and (d)).
---------------------------------------------------------------------------

    \2\ Under OPA'90 (33 U.S.C. 2713(b)(1)) claims may be presented 
first to the Fund in four cases:
     (A) If the President has advertised or otherwise notified 
claimants in accordance with section 2714(c) of this title;
    (B) by a responsible party who may assert a claim under section 
2708 of this title;
    (C) by the Governor of a State for removal costs incurred by 
that State; or
    (D) by a United States claimant in a case where a foreign 
offshore unit has discharged oil causing damage for which the Fund 
is liable under section 2712(a) of this title.
---------------------------------------------------------------------------

    These provisions of OPA'90 preserve the concept that those 
responsible for an oil pollution incident have the primary duty to 
respond to claims for OPA'90 removal costs and damages resulting from 
the incident. They impose an obligation on the responsible party (or 
guarantor) to advertise for and pay OPA'90 removal cost and damage 
claims, and afford claimants additional judicial and administrative 
remedies when the responsible party (or guarantor) does not pay a 
claim.
    OPA'90 also prohibits double recovery by claimants and preserves 
the ability of the United States to seek to recover amounts paid by the 
Fund to claimants. Several sections of OPA'90 speak to these 
protections.
    First, under OPA'90 (33 U.S.C. 2712(a)(4) and 2713(d)), claims may 
only be presented to, and paid by, the Fund for ``uncompensated'' 
removal costs and damages. Claimants thus bear the burden to 
demonstrate that their claimed removal costs and damages are 
uncompensated. In addition, OPA'90 (33 U.S.C. 2706(d)(3)) prohibits 
double recovery by trustees of natural resource damages for the same 
incident and natural resources. Similarly, OPA'90 (33 U.S.C. 2712(i)) 
prohibits double payment of claims from the Fund, stating that ``In any 
case in which the President has paid an amount from the Fund for any 
removal costs or damages specified under subsection (a) of this 
section, no other claim may be paid from the Fund for the same removal 
costs or damages.''
    OPA'90 (33 U.S.C. 2712(f)) also provides that ``Payment of any 
claim or obligation by the Fund under this Act shall be subject to the 
United States Government acquiring by subrogation all rights of the 
claimant or State to recover from the responsible party.'' In addition, 
OPA'90 (33 U.S.C. 2713(b)(2)) states that ``No claim of a person 
against the Fund may be approved or certified during the pendency of an 
action by the person in court to recover costs which are the subject of 
the claim.'' Finally, OPA'90 (33 U.S.C. 2715(a)) provides that ``Any 
person, including the Fund, who pays compensation pursuant to this Act 
to any claimant for removal costs or damages shall be subrogated to all 
rights, claims, and causes of action that

[[Page 67388]]

the claimant has under any other law.'' Under OPA'90 (33 U.S.C. 
2715(c)), the United States may, thereafter, recover not only the 
compensation paid to claimants, but also all costs incurred by the Fund 
by reason of the claim, including interest, administrative and 
adjudicative costs, and attorney's fees.
    OPA'90 (33 U.S.C. 2713(e) and 33 U.S.C. 2714(b)) requires that the 
procedures for advertising source designations and for presenting, 
filing, processing, settling, and adjudicating claims against the Fund, 
be established by regulation. This rulemaking focuses on those 
rulemaking requirements, which have been implemented at 33 CFR part 136 
(Claims Procedures).

B. Repeal by OPA'90 of Title III of The Outer Continental Shelf Lands 
Act Amendments of 1978

    In addition to establishing a new liability and compensation 
scheme, OPA'90 repealed a patchwork of earlier Federal oil spill laws, 
among them Title III of the Outer Continental Shelf Lands Act 
Amendments of 1978 (hereafter OCSLAA).
    OCSLAA had established an oil spill liability, compensation and 
financial responsibility regime for the Outer Continental Shelf (OCS) 
that was later mirrored in Title I of OPA'90. OCSLAA also contained OCS 
oil spill incident notification and penalty provisions similar to those 
in the Federal Water Pollution Control Act (FWPCA)(33 U.S.C. 1321(b)), 
as amended by OPA'90, and provisions for funding and managing a 
predecessor fund to the OSLTF, known as the Offshore Oil Spill 
Pollution Compensation Fund (OCSLAA Fund). These OCSLAA provisions were 
implemented by Coast Guard regulations at 33 CFR part 135 (OCSLAA 
Rule).
    OPA'90 Section 2004 (26 U.S.C. 9509 note) repealed OCSLAA, 
providing that: ``Title III of the Outer Continental Shelf Lands Act 
Amendments of 1978 (43 U.S.C. 1811-1824) is repealed. Any amounts 
remaining in the Offshore Oil Pollution Compensation Fund Established 
under section 302 of that title (43 U.S.C. 1812) shall be deposited in 
the Oil Spill Liability Trust Fund established under section 9509 of 
the Internal Revenue Code of 1986 (26 U.S.C. 9509). The Oil Spill 
Liability Trust Fund shall assume all liability incurred by the 
Offshore Oil Pollution Compensation Fund.'' (See 26 U.S.C. 9509 note.) 
This provision of OPA'90 effectively revoked the legal authority for 
the OCSLAA Rule.
    OPA'90 (33 U.S.C. 2751(b)), however, preserved the legal effect of 
certain regulations established under laws replaced by OPA'90 until 
repealed, amended, or superseded. In addition, OPA'90 (33 U.S.C. 
2716(h)) expressly preserved the legal force and effect of the OCSLAA 
Rule's evidence of financial responsibility provisions, at 33 CFR part 
135, subpart C, until the requirements were superseded by new evidence 
of financial responsibility regulations mandated by OPA'90 (33 U.S.C. 
2716(e)). (The OPA'90 financial responsibility provisions require 
responsible parties for certain vessels, deepwater ports and offshore 
facilities to establish and maintain evidence of financial 
responsibility, up to the applicable OPA'90 limit of liability.)

C. Regulatory History

1. Interim Rule
    On October 18, 1991, the President issued Executive Order (E.O.) 
12777, delegating the President's OPA'90 regulatory authorities. (56 FR 
54757, 3 CFR, 1991 Comp., p. 351, as amended by E.O. 13286, 68 FR 
10619, 3 CFR, 2004 Comp., p. 166). The delegations include OPA'90 
delegations to ``the Secretary of the department in which the Coast 
Guard is operating'' of the President's authorities to establish the 
OPA'90 Claims Procedures. (E.O. 12777, Sec. 7). In addition, E.O. 12777 
Sec. 8(i) revoked the delegations for the OCSLAA Rule.
    On August 12, 1992, the Coast Guard published the Interim Rule with 
request for comments, pursuant to this delegated authority. A copy of 
the Interim Rule is available in the public docket for this rulemaking 
(Document  USCG-2004-17697-0001). (Note that the docket number 
for this rulemaking referenced in the Interim Rule was CGD 91-035. The 
docket for this rulemaking was transferred in 2004 to a new docket 
system, and re-numbered USCG-2004-17697.)
    a. OPA'90 Claims Procedures. The Interim Rule established the 
OPA'90 Claims Procedures required by OPA'90 (33 U.S.C. 2713(e) and 
2714(b)), at 33 CFR part 136, subparts A through D. Subpart A of the 
Claims Procedures sets forth general provisions. Subpart D of the 
Claims Procedures implements the OPA'90 (33 U.S.C. 2714) requirements 
concerning designation of the source or sources of a discharge, or 
threat of discharge, of oil, and the procedures for responsible parties 
(or their guarantors) to timely deny the source designation or 
advertise the source designation and the procedure by which claims may 
be presented.
    Subparts B and C of the Claims Procedures set forth the OPA'90 (33 
U.S.C. 2713) procedures for presenting, filing, processing, settling, 
and adjudicating OPA'90 claims for ``uncompensated'' removal costs and 
damages to the NPFC for payment by the Fund. The latter include claims 
that are properly presented first to the responsible party or guarantor 
of the source, but that are denied or not settled by payment within the 
90-day period prescribed in OPA'90 (33 U.S.C. 2713(c)), and claims that 
are excepted by OPA'90 (33 U.S.C. 2713(b)) from the requirement to 
present claims first to the responsible party or guarantor.
    The Claims Procedures prevent double recovery by claimants and 
preserve the ability of the United States to recover claims paid by the 
Fund. For example, the Claims Procedures require that a claim to the 
Fund be properly documented by the claimant, including documentation 
sufficient for the NPFC to determine whether, and the extent to which, 
a claim is uncompensated. In addition, the Claims Procedures 
incorporate the OPA'90 (33 U.S.C. 2713(b)(2)) limitation on payment by 
the Fund of any claim pending in an action by the person in court 
(Sec.  136.103(d)); and require that the claimant's legal rights to 
recover against the responsible party be released to the Fund upon the 
Fund's payment of the claim.
    We note that OPA'90 requires regulations setting forth the 
procedures for presenting claims to the Fund (33 U.S.C. 2713(e)), and 
the requirements for the responsible party or guarantor to advertise 
the source designation and the procedures by which claims may be 
presented (33 U.S.C. 2714(b)(1)). OPA'90 does not, however, authorize 
Federal regulation of the procedures the responsible parties and 
claimants must use to settle claims presented to responsible parties. 
Those procedures therefore are not covered by the Claims Procedures.
    The OPA'90 and the Claims Procedures also do not address liability 
or compensation for oil removal costs or damages resulting from 
discharges or substantial threats of discharge of oil from public 
vessels, as defined by OPA'90. This is because the definition of 
``vessel'' in OPA'90 (33 U.S.C. 2701(37)) expressly excludes ``public 
vessels'' (defined in 33 U.S.C. 2701(29)) and OPA'90 expressly excludes 
``any discharge * * * from a public vessel'' from the OPA'90 Title I 
liability and compensation provisions (33 U.S.C. 2702(c)).
    b. OCSLAA Rule amendments. In addition to establishing the OPA'90 
Claims Procedures, the Interim Rule amended the OCSLAA Rule, removing 
the oil spill source designation and claims advertising regulations 
from

[[Page 67389]]

subpart D of the OCSLAA Rule (33 CFR part 135). These amendments were 
ministerial in nature and intended to remove obvious conflicts between 
the pre-OPA'90 regulations and the new OPA'90 source designation and 
advertising requirements in subpart D of the Claims Procedures (33 CFR 
part 136).\3\
---------------------------------------------------------------------------

    \3\ The Interim Rule similarly removed pre-OPA'90 claims 
procedures, at 33 CFR part 137, that had implemented provisions of 
the Deepwater Port Act of 1974 that were revoked by OPA'90 Section 
2003. Part 137 of 33 CFR was later removed in its entirety from the 
Code of Federal Regulations (see 61 FR 9274, March 7, 1996), and is 
now used for a separate OPA'90 regulatory requirement not pertinent 
to this rulemaking.
---------------------------------------------------------------------------

2. 1992 Comments on the Interim Rule
    The Coast Guard provided a 120-day opportunity for the public to 
comment on the Interim Rule following its publication, and received 28 
comment letters, containing approximately 250 discrete comments on the 
Interim Rule (1992 Comments). To view the 1992 Comments, please refer 
to the instructions above for viewing documents posted to the public 
docket for this rulemaking (USCG-2004-17697), in the section titled 
``Public Participation and Request for Comments.'' We also have 
summarized the 1992 Comments in a document titled ``1992 Comments 
Matrix'', which also is available in the public docket for this 
rulemaking (Document USCG-2004-17697-0032).
    We note that the Docket Management Facility has designated the 
Interim Rule in the public docket as Document  USCG-2004-
17697-0001. As a result, the public docket document number assigned to 
each of the 1992 Comments differs by one number. For example, ``1992 
Commenter 1'' appears in the public docket for this rulemaking as 
Document USCG-2004-17697-0002, ``1992 Commenter 2'' appears in 
the public docket as Document USCG-2004-17697-0003, and so 
forth.
    Three commenters expressed views concerning the Interim Rule's 
amendments to the OCSLAA Rule striking the OCSLAA source designation 
and advertising provisions from subpart D of the OCSLAA Rule. One 
commenter expressed support for the amendments. Another commenter noted 
that OCSLAA had been revoked, and expressed the view that the remaining 
provisions of the OCSLAA Rule included requirements that duplicate 
requirements under other law and should be removed from the Code of 
Federal Regulations. The third commenter expressed views concerning 
incident notification requirements under the Federal Water Pollution 
Control Act (33 U.S.C. 1321(b)(4)) that are similar to the OCSLAA 
incident notification requirements in subpart D of the OCSLAA Rule.
    A number of 1992 Comments expressed views about the OPA'90 
statutory scheme generally, and about statutory authorities and 
regulatory issues that are not related to this rulemaking.
    The remaining 1992 Comments concerned the OPA'90 Claims Procedures. 
Some commenters thought the Claims Procedures were generally reasonable 
and fair, and would ensure prompt, full and adequate recovery by 
claimants, to the extent authorized by OPA'90. Other 1992 Comments 
raised concerns about the wording of particular sections and how the 
Claims Procedures would be implemented.
3. Subsequent Corrections, Amendments and Superseding Rulemakings
    The Coast Guard published a correction to the Interim Rule, and has 
since published a number of technical amendments to the OCSLAA Rule and 
the Claims Procedures.\4\ To date, however, the Coast Guard has not 
published substantive changes to the Claims Procedures or further 
amended the OCSLAA Rule based on the 1992 Comments.
---------------------------------------------------------------------------

    \4\ Technical corrections to the Interim Rule preamble and two 
sections of 33 CFR part 136: 57 FR 41104, September 9, 1992. 
Amendment to 33 CFR 136.9 Falsification of claims, removing the 
dollar amount of possible civil penalties: 62 FR 16695, April 8, 
1997. Amendments to the NPFC addresses referenced throughout 33 CFR 
part 136: 74 FR 441, June 10, 2009. Amendments to the addresses 
referenced in OCSLAA Rule Sec. Sec.  135.9 and 135.305 of the: 63 FR 
35530, June 30, 1998, 71 FR 39209, July 12, 2006, 72 FR 36328, July 
2, 2007, 73 FR 35013, July 19, 2008, 74 FR 27440, June 10, 2009. 
Amendment to 33 CFR 135.103(b) to reflect an organizational name 
change from the Minerals Management Service to the Bureau of Ocean 
Energy Management Regulation and Enforcement: 76 FR 31831, June 2, 
2011.
---------------------------------------------------------------------------

    Several rulemakings have, however, effectively superseded the 
remaining provisions of the OCSLAA Rule. For example:
     As contemplated by OPA'90 (33 U.S.C. 2716), the Coast 
Guard published OPA'90 vessel evidence of financial responsibility 
regulations at 33 CFR part 138 (``Financial Responsibility for Water 
Pollution (Vessels)'', 59 FR 34210, July 1, 1994 [interim rule] and 61 
FR 9264, March 7, 1996 [final rule]), and the Minerals Management 
Service published OPA'90 offshore facility evidence of financial 
responsibility regulations at 30 CFR part 253 (``Oil Spill Financial 
Responsibility for Offshore Facilities'', 63 FR 42699, August 11, 
1998). As provided in OPA'90 (33 U.S.C. 2716(h)), those regulations 
superseded the OCS financial responsibility requirements at subpart C 
of the OCSLAA Rule.
     The incident notification requirements in subpart D of the 
OCSLAA Rule appear to have been overtaken by Coast Guard and 
Environmental Protection Agency regulations (33 CFR part 153, subpart 
B, and 40 CFR 110.6, respectively). Those regulations implement the 
requirement in FWPCA (33 U.S.C. 1321(b)(5)) for persons in charge of a 
vessel or facility to report incidents prohibited under FWPCA (33 
U.S.C. 1321(b)(3)).
     Subpart E of the OCSLAA Rule, concerning access to vessels 
subject to OCSLAA, production of their certificates of financial 
responsibility, and denial of entry and detention, appear to overlap, 
in part if not in whole, with 33 CFR 138.140. Subpart E of the OCSLAA 
Rule also appears to have been overtaken by implementation of the 2008 
amendments to 33 CFR part 138, which eliminated paper certificates of 
financial responsibility.
    Similarly, subparts A and B of the OCSLAA Rule, concerning 
management of the OCSLAA Fund, have been overtaken by events. In 
particular, OPA'90 Section 2004 (26 U.S.C. 9509 note) terminated and 
transferred the balance of the OCSLAA Fund to the OSLTF, and all 
outstanding claims to that OCSLAA Fund have long since been 
adjudicated.

IV. Purpose of the Notice of Inquiry

    The OPA'90 Claims Procedures have now been in effect for over 19 
years as an Interim Rule, and have proven adequate. For example, 
between August 12, 1992, when the Claims Procedures were first 
promulgated, and October 26, 2011, the NPFC adjudicated 13,066 claims, 
with resulting payments from the Fund of $414,212,615.
    The Coast Guard recognizes that the Claims Procedures could be 
amended to address regulatory gaps, and that certain of its provisions 
could be clarified. Moreover, as previously mentioned, the OCSLAA 
Rule's remaining provisions appear to have been effectively superseded 
or overtaken by other regulations. The Coast Guard is, therefore, 
considering removing the OCSLAA Rule and reserving 33 CFR part 135.
    The Coast Guard has considered all of the 1992 Comments on the 
Interim Rule, but recognizes that some of the 1992 Comments concerned 
legal issues that have since been resolved, and others may have 
resulted from the public's lack of experience with the Claims

[[Page 67390]]

Procedures at the time. Therefore, before publishing a SNPRM to amend 
the Claims Procedures, we would like to know what the public's views 
are of the Claims Procedures, based on the experience gained over the 
years since they were published. We also would like to know the 
public's views on whether the remaining provisions of the OCSLAA Rule 
should be removed from the Code of Federal Regulations. Finally, we 
would like current information from the public that will help us 
conduct the regulatory assessments required for this rulemaking.
    This notice of inquiry is consistent with Executive Order 12866, as 
supplemented by Executive Order 13563, in that it seeks public comments 
on the burden and effectiveness of the existing regulations, so that 
the Coast Guard may consider how best to tailor or streamline the 
regulations.

A. Scope of the Notice of Inquiry

    The questions in Part V of this Notice of Inquiry invite you to 
comment on the 1992 Comments, on your experience with the OPA'90 Claims 
Procedures, on removal of the OCSLAA Rule from the Code of Federal 
Regulations, and on regulatory analysis issues relevant to this 
rulemaking. These questions are not intended to be a comprehensive list 
of the subjects we may decide to address in the SNPRM, and you will 
have an opportunity to comment on any subjects not mentioned here 
during the public comment period that will follow our publication of 
the SNPRM.
    Your responses to the questions in Part V of this Notice of Inquiry 
will, however, help us determine the scope of the issues that may need 
to be addressed in this rulemaking and will inform us about ways we may 
be able to improve the OPA'90 Claims Procedures based on experience. 
For example, we want to ensure we know about issues that may not have 
been apparent in 1992 and were not raised in the 1992 Comments. 
Likewise, a number of the 1992 Comments asked questions about how the 
Coast Guard planned to implement the Claims Procedures. The Coast Guard 
does not want to propose changes to the Claims Procedures to address 
issues the public had in 1992 that the public believes are now well 
understood or have since been resolved through implementation of the 
Claims Procedures.
    We are, therefore, interested in knowing whether, based on your 
experience, the issues raised in the 1992 Comments are still a concern, 
and whether other issues need to be addressed. For this reason, we 
invite you to address any or all of the questions in Part V of this 
Notice of Inquiry, and to submit comments on any other issues 
concerning this rulemaking that you would like to bring to our 
attention.

B. Some of the 1992 Comments Will Not Need To Be Addressed Further in 
This Rulemaking

    We have responded to some of the issues raised in the 1992 
Comments, in Column C of the ``1992 Comments Matrix'', which is 
available in the public docket for this rulemaking (Document  
USCG-2004-17697-0032). We do not plan to revisit those issues in the 
future, and are not requesting further comment from you on those 
issues. Examples of the resolved issues include the following:
    1. Some of the 1992 Comments expressed views about OPA'90 and other 
statutory and regulatory issues that are beyond the scope of this 
rulemaking.
    2. Some of the 1992 Comments responded to a reference in the 
preamble of the Interim Rule (at 57 FR 36315, column 1), to then-
pending questions regarding whether Federal, State and Indian tribe 
trustees can claim against the Fund for natural resource damages under 
OPA'90 (33 U.S.C. 2713). The United States subsequently resolved those 
issues, concluding that trustee claims may be paid using amounts 
available from the Fund for claims.
    3. Some of the 1992 Comments requested amendments to the Claims 
Procedures that would be clearly contrary to OPA'90.
    4. One of the 1992 Comments noted that a technical editorial 
correction was needed, replacing the word ``Commander'' in the last 
line of Sec.  136.101(b) with the word ``Director''. This correction 
was made in a Federal Register notice published at 57 FR 41104 on 
September 9, 1992. Another of the 1992 Comments pointed out a technical 
error in Sec.  136.305(b)(3) that we are aware of and plan to address 
in the SNPRM.
    5. Two 1992 Comments related to the Coast Guard's finding of ``good 
cause'' to make the interim rule immediately effective upon 
publication, under the Administrative Procedure Act (5 U.S.C. 553(b)(B) 
and (d)(3)). That finding was based on the need to make the OPA'90 
Claims Procedures immediately available to those eligible to file a 
claim against the Fund. The Coast Guard provided the public a 120-day 
opportunity to comment on the Interim Rule following its publication, 
is providing an additional opportunity for public comment by publishing 
this Notice of Inquiry, and plans to provide an opportunity for further 
public comment when the SNPRM is published.
    6. One of the 1992 Comments was a request to meet with the NPFC. 
The NPFC did not meet with the commenter and does not believe that 
meeting at this time would aid the rulemaking.
    7. One of the 1992 Comments objected to submitting comments in 
triplicate. Commenters are no longer required to submit their comments 
in triplicate.

C. Information We Would Like You To Include in Your Comments

    When responding to the questions in Part V of this Notice of 
Inquiry below, please identify your interest in the rulemaking. Please 
also identify the specific regulatory provision you are commenting on 
and, as applicable, identify each of the 1992 Comments you are 
commenting on and describe any issues not addressed in the 1992 
Comments. Lastly, please describe your experience, including how any 
issues were resolved and how any remaining issues might be addressed 
through the rulemaking.

D. How To Use the Comment Matrices

    You may choose to submit your comments using any of the methods 
discussed in ADDRESSES, and in any of the formats discussed in the 
``Public Participation and Request for Comments'' portion of the 
SUPPLEMENTARY INFORMATION section, including in a standard letter. In 
addition, to promote maximum public participation in this rulemaking 
and assist you in responding to the questions in Part V of this Notice 
of Inquiry, we have provided two downloadable Excel format matrix 
documents in the public docket for this rulemaking (USCG-2004-17697) 
that you may choose to use to provide your comments, and we encourage 
you to do so.\5\
---------------------------------------------------------------------------

    \5\ If you do not have Microsoft Office on your computer, 
libreoffice.org, openoffice.org and other groups offer free office 
suites that you may wish to download to your computer. Many of these 
suites run on Windows, Mac OS and Linux operating systems and 
include programs that can open and edit MS Excel documents. Your 
local public library may also have computers for the public's use 
that are equipped with Excel or other compatible software.
---------------------------------------------------------------------------

    The documents are titled: ``1992 Comments Matrix'' (Document 
 USCG-2004-17697-0032) and ``NOI Questions Matrix'' (Document 
 USCG-2004-17697-0033). You may access the matrix documents as 
follows:
    (1) Go to https://www.regulations.gov.

[[Page 67391]]

    (2) Enter the docket number of this rulemaking (USCG-2004-17697) in 
box titled ``Enter Keyword or ID'' and click the box labeled 
``Search''.
    (3) In the search results page, check the ``Rulemaking'' box under 
``Docket Type''.
    (4) Further down on the page, select the ``View by Relevance'' tab.
    (5) You may sort (or reverse sort) the listed documents by document 
ID number by clicking on the document ``ID'' column.
    (6) Scroll to the document you want to view, and click on the link 
for the document. This will take you to the Document Details page for 
the document you want to view.
    (7) On the right side of the ``Attachments'' box on the Document 
Details page select the XLS icon.
    To comment using a matrix document, please first download the 
document to your computer, and save the document with a unique file 
name in Excel 97-2003 Workbook (*.xls) format. For example, after 
downloading the ``NOI Questions Matrix'', please go to ``save as'' on 
your computer, give the document a unique file name such as ``NOI 
Questions Matrix--ABC Company Comments'', and select Excel 97-2003 
Workbook (*.xls) in the document ``save as type'' drop down.\6\ (If 
your comments are anonymous, you may save the document as ``NOI 
Questions Matrix--Anonymous Comments''.)
---------------------------------------------------------------------------

    \6\ We are requesting that you save the document to the Excel 
97-2003 Workbook (*.xls) version of Excel so that other members of 
the public who do not have access to more recent versions of Excel 
can view your comments.
---------------------------------------------------------------------------

    After saving the matrix document with a unique name, you may add 
your comments and contact information in the columns and cells 
provided, as follows:
    1. In the document titled ``NOI Questions Matrix'', the Notice of 
Inquiry questions appear in Column A. You may use Column B to provide 
your answers to the questions asked in Part V of this Notice of 
Inquiry, and Column C to provide your (optional) contact information 
and to specify the interest group you belong to, or represent (see 
question 1, in Part V below.)
    2. In the document titled ``1992 Comments Matrix'', the 1992 
Comments are summarized in Column A, and Column B provides the 1992 
commenter number and public docket document number for the comment 
letter. You may use the ``1992 Comments Matrix'' to respond to 
questions 2 and 3, in Part V, below. Specifically, you may provide your 
comments in Column C, and your (optional) contact information and 
information about the interest group you belong to, or represent in 
Column D.
    Note that we have sorted the comment summaries topically in the 
``1992 Comments Matrix'', based on: The Interim Rule Federal Register 
page and column number; the regulatory part, subpart, section and 
subsection number each comment relates to; and the docket number 
assigned to each comment document.
    When a commenter made the same comment more than once, we have 
summarized the comment only once in the ``1992 Comment Matrix'', sorted 
by the first section referenced by the commenter, and have included 
cross-references within the summary to the other regulatory sections 
referenced by the commenter. For example, one commenter commented 
multiple times on the need to avoid double counting of amounts claimed.
    We also have included certain clarifying explanatory information at 
the end of some of the comment summaries in the ``1992 Comments 
Matrix''. This information, which is not reflected in the 1992 
Comments, is in brackets and italics.
    In both matrix documents, we have locked the text we have provided, 
such as the Notice of Inquiry questions and 1992 Comment summaries. 
This is to protect against inadvertent changes to that information 
while you are entering your comments in the document.
    If you need more space in a cell you wish to enter text into, you 
may expand the width of each column and the height of each row.\7\ You 
may also adjust the font size of the text.
---------------------------------------------------------------------------

    \7\ To change the width of columns, position the mouse pointer 
on the right boundary of a column letter heading until it turns into 
a double-sided arrow. Drag until the column is the width that you 
want. To change the row height, position the mouse pointer on the 
bottom boundary of the row number heading until it turns into a 
double-sided arrow. Drag until the row is the height that you want. 
You can find more information about changing column widths and row 
heights in Excel help.
---------------------------------------------------------------------------

    After you have entered your comments and contact information, save 
the matrix document again. Then submit the matrix document to the 
public docket using any of the methods discussed in ADDRESSES. If you 
choose to upload the matrix document to the public docket 
electronically, follow the instructions for submitting comments to the 
public docket electronically provided above in the section of this 
Notice of Inquiry titled ``Public Participation and Request for 
Comments'' under ``Submitting comments''.

V. Notice of Inquiry Questions

A. Question Concerning Your Interest in the Rulemaking

    Question 1. What interest group do you belong to or represent?
    Discussion: Knowing what interest group a commenter belongs to or 
represents helps us understand the comments we receive. This 
information, however, is not always clear from the letterhead used by 
the commenter. We, therefore, invite you to let us know what interest 
group you belong to, or represent, by responding to question 1. For 
example, you may be, or represent, a State government or political 
subdivision, an Indian tribe, a Federal, State or Indian tribe natural 
resource trustee, an oil spill response organization, or other public 
or private claimant; a responsible party or guarantor; a facility 
owner, operator, licensee, lessee or permittee; a vessel owner, 
operator or demise charterer; an industry association; or other 
interested individual, business, public interest association, agency of 
the U.S. Government or other public agency.

B. Questions Concerning the 1992 Comments on the Interim Rule

    Question 2. What, if any, issues raised in the 1992 Comments do you 
believe it would be helpful for the Coast Guard to address in the 
SNPRM?
    Question 3. What, if any, issues raised in the 1992 Comments do you 
believe no longer need to be addressed?
    Discussion: The Coast Guard has reviewed and considered the 1992 
Comments on the Interim Rule. We believe that some of the issues raised 
by the 1992 Comments reflected the public's lack of experience with the 
Claims Procedures at that time, and have been resolved through 
implementation of 33 CFR part 136 and the public's increased 
familiarity with the OPA'90 claims process.
    We do not plan to revisit issues raised in the 1992 Comments that 
appear to have been resolved unless the public expresses interest in 
our doing so. We, therefore, invite you to review the 1992 Comments and 
alert us to issues you would like us to address. We are particularly 
interested in hearing from you if you submitted a 1992 Comment, if you 
have been an OPA'90 claimant to the Fund or a responsible party or 
guarantor, or if you have other experience with the OPA'90 Claims 
Procedures or the OCSLAA Rule.
    If you respond to either question 2 or 3, please identify each of 
the 1992 Comments you are responding to, and provide your views on why 
you believe it would be helpful for us to address the

[[Page 67392]]

issues in the rulemaking, or why it is no longer necessary for an issue 
to be addressed in the rulemaking. You may use the ``1992 Comments 
Matrix'' to respond to questions 2 or 3.

C. Questions Concerning the Claims Procedures (33 CFR Part 136)

1. Rule Organization and Other Clarifications to the Claims Procedures
    Question 4. What organizational changes would improve the Claims 
Procedures (33 CFR Part 136)?
    Question 5. What, if any, regulatory gaps would you like us to 
address in the Claims Procedures (33 CFR part 136)?
    Question 6. Are there procedures in the Claims Procedures (33 CFR 
part 136) that you would like us to streamline?
    Question 7. Are there procedures in the Claims Procedures (33 CFR 
part 136) that you would like us to clarify or explain in greater 
detail in the regulations?
    Question 8. What, if any, terms used in the Claims Procedures (33 
CFR part 136) would you like us to define or clarify?
    Discussion: Executive Order (E.O.) 12866 requires that regulations 
be simple and easy to understand. The goals of these requirements 
include minimizing the potential for uncertainty, and ensuring the 
public understands important regulatory requirements.
    The Coast Guard is, therefore, considering amendments to the Claims 
Procedures, to clarify the presentation and address regulatory gaps. 
For example, we are considering reorganizing the rule along certain 
lines, possibly including the following:
     Moving the source designation and claims advertising 
regulations, which currently appear in subpart D, earlier in the rule 
to a new subpart B, to reflect the chronological order in which matters 
arise following an oil spill incident;
     Creating a separate subpart for natural resource damage 
trustee claims under 33 U.S.C. 2702(b)(2)(A), which may only be brought 
by Federal, State, Indian tribe, and certain foreign trustees (see 33 
U.S.C. 2707);
     Adding a separate subpart for responsible party claims, 
which are not expressly addressed in the current rules;
     Creating a separate subpart for the claims determination 
and reconsideration procedures; and
     Consolidating certain generally-applicable requirements in 
subpart A.
    Other possible amendments to the regulatory text might include: 
Stating the procedures in simpler terms (plain language); explaining 
other requirements in greater detail; and adding or amending the 
definitions for terms that may not be well understood. The Coast Guard 
invites you to comment on whether these types of clarifying changes 
would be helpful, and on any other recommendations you might have for 
clarifying the Claims Procedures.
2. Claims Procedures Regulatory Deadlines
    Question 9. Have you been able to work within the regulatory 
deadlines in the Claims Procedures (33 CFR part 136)?
    Question 10. Do you have a comment on changing the deadlines in 
Sec.  136.115(b) and Sec.  136.115(d) to 90 days after mailing by the 
Director, NPFC?
    Discussion: The Claims Procedures establish a number of different 
deadlines. Some of the deadlines are required by OPA'90, such as those 
in 33 U.S.C. 2714 and subpart D of the Claims Procedures concerning 
source designations and advertising. Changes to these statutory 
deadlines would require a change in the law. The statutory deadlines 
are, therefore, outside the scope of this regulation.
    Other Claims Procedures deadlines, however, are entirely 
regulatory. For example, Sec.  136.115(b) establishes a 60-day 
regulatory deadline for claimants to accept an offer of settlement by 
the Fund, and Sec.  136.115(d) establishes two deadlines, a 60-day or 
30-day deadline, for the NPFC to receive requests for reconsideration.
    We are considering changing these regulatory deadlines to 90 days 
after mailing by the Director, NPFC, to simplify the rule and minimize 
confusion between these deadlines. The Coast Guard, therefore, invites 
your views on whether the Claims Procedures deadlines are clear, and 
whether the changes we are considering to the deadlines in Sec.  
136.115, or to any other regulatory deadlines in part 136, would be 
helpful. (We are not requesting comment on any statutory deadline.)
3. Claims Submission Requirements
    Question 11. Do you have any comment on amending Sec.  136.105(c) 
to allow claimants to submit claims that are not ``signed in ink'' 
originals?
    Question 12. What, if any, recommendations do you have on limits 
the Coast Guard could consider placing on claims submissions to ensure 
their authenticity and reliability?
    Question 13. What, if any, other changes to the claims submission 
requirements in subparts A and B of the Claims Procedures, (33 CFR part 
136) are needed or would be helpful?
    Discussion: The Claims Procedures (Sec.  136.105(c)) require that 
claim submissions be ``signed in ink''. The Interim Rule, however, pre-
dated substantial legal precedent recognizing the authenticity and 
reliability of electronic documents, such as scanned documents, which 
can be submitted almost instantly by electronic mail, and facsimile 
copies of original documents.
    The Coast Guard is, therefore, considering removing the ``signed in 
ink'' requirement (Sec.  136.105(c)) in order to take advantage of 
technological advances in communications. Claimants would still be 
required to certify that the claim accurately reflects all material 
facts. The Coast Guard invites your views on this change.
    The Coast Guard also invites your views on whether any other 
changes to the other claims submission requirements in subparts A and B 
of the Claims Procedures are needed or would be helpful.
4. Claims Determination and Reconsideration Procedures
    Question 14. Do you have any comment about removing the requirement 
in Sec.  136.115(c) to send claims denials by certified or registered 
mail?
    Question 15. What, if any, other comments do you have on the claims 
determination and reconsideration procedures?
    Discussion: The Claims Procedures (Sec.  136.115(c)) state that the 
NPFC will send claims denial determinations to claimants by certified 
or registered mail. This increases the Coast Guard's administrative 
costs. It also may not be helpful to the public since claims 
determinations can be, and are now also, transmitted electronically 
(e.g., electronic mail and facsimile transmissions).
    Therefore, although the Coast Guard would continue to send all 
determinations to claimants by reliable means, including by U.S. mail, 
we are considering removing the certified or registered mail 
requirement from the regulations, and we invite your comment on this 
change. The Coast Guard also invites you to comment on any other aspect 
of the claims determination and reconsideration procedures.
5. Distinguishing the Different Categories of Claims Due to Injury, 
Loss or Destruction to, or Loss of Use of, Natural Resources
    Question 16. What, if any, clarification is needed concerning the

[[Page 67393]]

distinctions in OPA'90 and the Claims Procedures between the different 
categories of claims resulting from the injury, loss or destruction to, 
or loss of use of, natural resources due to an oil spill incident?
    Discussion: Under OPA'90 (33 U.S.C. 2702(b)(2)), claims may be made 
to the Fund for four distinct categories of damages due to injury, loss 
or destruction to, or loss of use of, natural resources as a result of 
an oil spill incident: (1) Damages for loss of subsistence use of 
natural resources, which may only be claimed by a person who so uses 
natural resources which have been injured, destroyed or lost, without 
regard to the ownership or management of the resources; (2) damages 
equal to the loss of profits or impairment of earning capacity due to 
the injury, destruction, or loss of natural resources, which are 
recoverable by any claimant; (3) damages for injury, loss or 
destruction to, or loss of use of, natural resources as a result of an 
oil spill, which can only be recovered by Federal trustees, State 
trustees, Indian tribe trustees, and certain foreign trustees; and (4) 
damages equal to the net loss of government revenue (i.e., taxes, 
royalties, rents, fees, or net profit shares) due to the injury, 
destruction, or loss of natural resources, which can only be recovered 
by the Government of the United States, a State or a political 
subdivision thereof.\8\ Issues have, however, come up over the years 
indicating that the distinctions between these claims categories, 
particularly the distinctions between subsistence use loss and other 
claim categories, may not be well understood.
---------------------------------------------------------------------------

    \8\ As noted in Question 20, below, claims for damages equal to 
the loss of profits or impairment of earning capacity, and the net 
loss of government revenue, may also be brought if due to the 
injury, destruction, or loss of real or personal property.
---------------------------------------------------------------------------

    Two courts have considered what constitutes a subsistence use loss 
of natural resources under OPA'90. See In re Cleveland Tankers, Inc., 
791 F. Supp. 669 (E.D. Mich. 1992), and Sekco Energy, Inc. v. M/V 
Margaret Chouest, 820 F. Supp. 1008 (E.D. La. 1993). Both courts found 
that this type of damage may be claimed only by persons who are 
dependent on the injured, destroyed, or lost natural resources to 
obtain the minimum necessities of life, such as food, water, and 
shelter, and does not include commercial uses of natural resources.
    The NPFC has further determined that loss of subsistence use of 
natural resources damages may only be compensated by the Fund to 
individuals and households who can show that they rely on the natural 
resources which have been injured, destroyed, or lost due to an oil 
spill incident, to meet their minimum necessities of life; but that 
claims for the lost commercial use of natural resources (including the 
use of natural resources for barter) may be compensated by the Fund to 
any claimant who can show a loss of profits or impairment of earning 
capacity due to the injury, destruction, or loss of the natural 
resources as a result of an oil spill incident. In addition, the NPFC 
has determined that recreational or public use losses due to the 
injury, destruction, or loss of natural resources as a result of an oil 
spill incident may only be claimed as a measure of damages in natural 
resource damage claims brought by Federal, State, Indian tribe, and 
certain foreign trustees; and that claims for the net loss of revenues 
due to the injury, destruction, or loss of natural resources as a 
result of an oil spill incident, may only be brought by the United 
States, a State or a political subdivision of a State.
    The Coast Guard invites you to comment on whether clarifications 
are needed in the regulatory text to further explain these distinctions 
and the proof requirements for each of these categories of claims.
6. The Public Notice and Comment Exception for Certain Natural Resource 
Damage Trustee Claims
    Question 17. Do you have any views on whether claims that fall 
under the exception in OPA'90 33 U.S.C. 2712(j)(2) to the public notice 
and planning requirement of OPA'90 33 U.S.C. 2706(c), should be further 
defined or separately addressed in the Claims Procedures (33 CFR part 
136)?
    Discussion: OPA'90 (33 U.S.C. 2706(c)(5)) requires that Federal, 
State, Indian tribe, and foreign trustees develop and implement plans 
for the restoration rehabilitation, replacement, or acquisition of the 
equivalent of the natural resource under their trusteeship ``only after 
adequate public notice, opportunity for a hearing, and consideration of 
all public comment.'' OPA'90 (33 U.S.C. 2712(j)(1)) in turn provides 
that, with one exception, amounts may be obligated from the Fund for 
the restoration, rehabilitation, replacement, or acquisition of natural 
resources only in accordance with a plan adopted under OPA'90 (33 
U.S.C. 2706(c)).
    OPA'90 (33 U.S.C. 2712(j)(2)), however, permits obligations from 
the Fund without a plan adopted pursuant to OPA'90 (33 U.S.C. 
2706(c)(5)) ``in a situation requiring action to avoid irreversible 
loss of natural resources or to prevent or reduce any continuing danger 
to natural resources or similar need for emergency action'' (referred 
to as ``emergency restoration''). The current Claims Procedures do not 
address this exception to the planning requirement. The Coast Guard, 
therefore, invites your views on whether, and how, the planning 
exception in OPA'90 (33 U.S.C. 2712(j)(2)) should be addressed in the 
Claims Procedures.
7. Damage Assessment Costs
    Question 18. What, if any, clarification is needed concerning the 
distinction in Sec.  136.105(e)(8) of the Claims Procedures (33 CFR 
part 136) between (1) The reasonable costs incurred by a claimant in 
assessing the damages claimed (damage assessment costs), which may be 
compensated by the Fund, and (2) attorney's fees or other 
administration costs associated with preparation of a claim, which are 
not compensable by the Fund?
    Question 19. What criteria might the Coast Guard use to determine 
if costs are compensable damage assessment costs, or clearly not 
compensable attorney's fees or other administration costs associated 
with preparation of a claim?
    Discussion: Under OPA'90 and the Claims Procedures, the reasonable 
costs incurred by a claimant in assessing the damages claimed are 
compensable by the Fund. This may, for example, include the reasonable 
cost of an accountant, scientist or other expert to determine, measure, 
or otherwise quantify, the extent of economic losses resulting from 
destruction of real or personal property, or the extent of injury to, 
destruction of, loss of, or loss of use of, a natural resource, or the 
extent of lost profits. In addition, for natural resource damage 
trustee claims, the NPFC has determined that assessment costs include 
the reasonable cost of determining the restoration actions needed, 
including the reasonable administrative and legal costs of damage 
assessment and restoration planning. OPA'90 and the Claims Procedures, 
however, do not authorize compensation from the Fund for the costs of 
attorney's fees and other administrative costs associated with 
preparation of a claim.
    The Coast Guard is considering clarifying damage assessment costs 
in the Claims Procedures and invites your comment.
8. Other Comments on the Claims Procedures for Different Categories of 
Claims
    Question 20. What, if any, other comments do you have about the

[[Page 67394]]

requirements in subpart C of the Claims Procedures (33 CFR part 136) 
concerning the different categories of claims that may be compensated 
by the Fund under OPA'90?
    Discussion: In addition to the damage claims categories resulting 
from injury to, destruction of, loss of, or loss of use of, natural 
resources, claims resulting from an oil spill incident may be made to 
the Fund for: (1) Removal costs incurred due to an oil spill incident, 
which are recoverable as provided in OPA'90 (33 U.S.C. 2702(b)(1)), 
including by any person for acts taken by the person which are 
consistent with the National Contingency Plan; (2) damages for injury 
to, or economic losses resulting from destruction of, real or personal 
property damages, which are recoverable by a claimant who owns or 
leases that property; (3) damages equal to the net loss of government 
revenues due to