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

Download as PDF Federal Register / Vol. 76, No. 211 / Tuesday, November 1, 2011 / Proposed Rules 2. Redesignating paragraph (c)(2)(iv)(C) as paragraph (c)(2)(iv)(D) and adding new paragraph (c)(2)(iv)(C). 3. Adding a sentence at the end of paragraph (e)(5). The additions and revisions read as follows: Par. 2. Section 31.3121(b)(3)–1 is amended by: 1. Revising paragraph (c). 2. Adding paragraphs (d) and (e). The revision and addition read as follows: § 31.3121(b)(3)–1 Family Employment. * * * * * (c) [The text of the proposed amendment to § 31.3121(b)(3)–1(c) is the same as the text of § 31.3121(b)(3)– 1T(c) published elsewhere in this issue of the Federal Register]. (d) [The text of the proposed amendment to § 31.3121(b)(3)–1(d) is the same as the text of § 31.3121(b)(3)– 1T(d) published elsewhere in this issue of the Federal Register]. (e) [The text of the proposed amendment to § 31.3121(b)(3)–1(e) is the same as the text of § 31.3121(b)(3)– 1T(e) published elsewhere in this issue of the Federal Register]. Par. 3. Section 31.3127–1 is added to read as follows: § 31.3127–1 Exceptions for employers and their employees where both are members of religious faiths opposed to participation in Social Security Act programs. [The text of the proposed § 31.3127– 1 is the same as the text of § 31.3127– 1T published elsewhere in this issue of the Federal Register]. Par. 4. Section 31.3306(c)(5)–1 is amended by: 1. Revising paragraph (c). 2. Adding paragraphs (d) and (e). The revision and addition read as follows: § 31.3306(c)(5)–1 Family Employment. * * * * (c) [The text of the proposed amendment to § 31.3306(c)(5)–1(c) is the same as the text of § 31.3306(c)(5)–1T(c) published elsewhere in this issue of the Federal Register]. (d) [The text of the proposed amendment to § 31.3306(c)(5)–1(d) is the same as the text of § 31.3306(c)(5)– 1T(d) published elsewhere in this issue of the Federal Register]. (e) [The text of the proposed amendment to § 31.3306(c)(5)–1(e) is the same as the text of § 31.3306(c)(5)–1T(e) published elsewhere in this issue of the Federal Register]. emcdonald on DSK5VPTVN1PROD with PROPOSALS * PART 301—PROCEDURE AND ADMINISTRATION Par. 5. The authority citation for part 301 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * Par. 6. Section 301.7701–2 is amended by: 1. Revising paragraph (c)(2)(iv)(A). VerDate Mar<15>2010 15:55 Oct 31, 2011 Jkt 226001 § 301.7701–2 definitions. Business entities; * * * * * (c) * * * (2) * * * (iv) * * * (A) [The text of the proposed amendment to § 301.7701–2(c)(2)(iv)(A) is the same as the text of § 301.7701– 2T(c)(2)(iv)(A) published elsewhere in this issue of the Federal Register]. (B) * * * (C) [The text of the proposed amendment to § 301.7701–2(c)(2)(iv)(C) is the same as the text of § 301.7701– 2T(c)(2)(iv)(C) published elsewhere in this issue of the Federal Register]. * * * * * (e) * * * (5) * * * [The text of the proposed amendment to § 301.7701–2(e)(5) is the same as the text of § 301.7701–2T(e)(5) published elsewhere in this issue of the Federal Register]. * * * * * Steven T. Miller, Deputy Commissioner for Services and Enforcement. [FR Doc. 2011–28177 Filed 10–31–11; 8:45 am] BILLING CODE 4830–01–P 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 Coast Guard, DHS. ACTION: Notice of inquiry. AGENCY: 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 SUMMARY: PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 67385 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 E:\FR\FM\01NOP1.SGM 01NOP1 67386 Federal Register / Vol. 76, No. 211 / Tuesday, November 1, 2011 / Proposed Rules 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 I. Abbreviations emcdonald on DSK5VPTVN1PROD with PROPOSALS 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 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 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 VerDate Mar<15>2010 18:02 Oct 31, 2011 Jkt 226001 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 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 format, no larger than 81⁄2 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 E:\FR\FM\01NOP1.SGM 01NOP1 Federal Register / Vol. 76, No. 211 / Tuesday, November 1, 2011 / Proposed Rules emcdonald on DSK5VPTVN1PROD with PROPOSALS 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 VerDate Mar<15>2010 15:55 Oct 31, 2011 Jkt 226001 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 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). 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. PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 67387 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)). 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 E:\FR\FM\01NOP1.SGM 01NOP1 67388 Federal Register / Vol. 76, No. 211 / Tuesday, November 1, 2011 / Proposed Rules emcdonald on DSK5VPTVN1PROD with PROPOSALS 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). 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.) 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 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, VerDate Mar<15>2010 15:55 Oct 31, 2011 Jkt 226001 C. Regulatory History PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 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 (§ 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 E:\FR\FM\01NOP1.SGM 01NOP1 Federal Register / Vol. 76, No. 211 / Tuesday, November 1, 2011 / Proposed Rules 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 emcdonald on DSK5VPTVN1PROD with PROPOSALS 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 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. VerDate Mar<15>2010 15:55 Oct 31, 2011 Jkt 226001 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. 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, 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 §§ 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. PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 67389 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 E:\FR\FM\01NOP1.SGM 01NOP1 67390 Federal Register / Vol. 76, No. 211 / Tuesday, November 1, 2011 / Proposed Rules emcdonald on DSK5VPTVN1PROD with PROPOSALS 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 VerDate Mar<15>2010 15:55 Oct 31, 2011 Jkt 226001 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 § 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 § 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 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 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 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. 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. E:\FR\FM\01NOP1.SGM 01NOP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 211 / Tuesday, November 1, 2011 / Proposed Rules (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’’.) 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 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. VerDate Mar<15>2010 15:55 Oct 31, 2011 Jkt 226001 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 crossreferences 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. 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’’. 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. PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 67391 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 E:\FR\FM\01NOP1.SGM 01NOP1 67392 Federal Register / Vol. 76, No. 211 / Tuesday, November 1, 2011 / Proposed Rules 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) emcdonald on DSK5VPTVN1PROD with PROPOSALS 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 generallyapplicable requirements in subpart A. Other possible amendments to the regulatory text might include: Stating the procedures in simpler terms (plain language); explaining other VerDate Mar<15>2010 15:55 Oct 31, 2011 Jkt 226001 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 § 136.115(b) and § 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, § 136.115(b) establishes a 60day regulatory deadline for claimants to accept an offer of settlement by the Fund, and § 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 § 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 § 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 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 Claims Procedures, (33 CFR part 136) are needed or would be helpful? Discussion: The Claims Procedures (§ 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 (§ 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 § 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 (§ 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 E:\FR\FM\01NOP1.SGM 01NOP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 211 / Tuesday, November 1, 2011 / Proposed Rules 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. 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 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. VerDate Mar<15>2010 15:55 Oct 31, 2011 Jkt 226001 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 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 67393 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 § 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 E:\FR\FM\01NOP1.SGM 01NOP1 67394 Federal Register / Vol. 76, No. 211 / Tuesday, November 1, 2011 / Proposed Rules 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 the injury, destruction, or loss of real property or personal property, which can only be recovered by the Government of the United States, a State or a political subdivision thereof; (4) damages equal to the loss of profits or impairment of earning capacity due to the injury, destruction, or loss of real property or personal property, which are recoverable by any claimant; and (5) damages for the net costs of providing increased or additional public services during or after oil spill removal activities, which may be recovered by a State or political subdivision. The Coast Guard invites your views on any issues concerning the regulatory requirements in subpart C of the Claims Procedures for these different OPA’90 claims categories. emcdonald on DSK5VPTVN1PROD with PROPOSALS 9. Source Designations and Claims Advertising Question 21. What, if any, comments do you have on the requirements in subpart D of the Claims Procedures (33 CFR part 136) concerning source designations and claims advertising? Discussion: Subpart D of the Claims Procedures sets forth the procedures for designating the source of an incident (i.e., a vessel or facility) and for notifying the responsible party and guarantor of the source, when known, about the designation, and the requirements concerning the type, geographic scope, frequency, initiation and duration of claims advertising following an oil spill incident. A number of 1992 Comments concerned these requirements. The Coast Guard is, therefore, interested in your views on whether these procedures are clear, or whether further clarification is needed to these requirements. VerDate Mar<15>2010 15:55 Oct 31, 2011 Jkt 226001 D. Questions Concerning Removal of the OCSLAA Rule (33 CFR Part 135) From The Code of Federal Regulations Question 22. What, if any, comments do you have on whether the OCSLAA Rule (33 CFR part 135) should be removed from the Code of Federal Regulations? Question 23. What, if any, provisions of the OCSLAA Rule (33 CFR part 135) would it be helpful to keep in the Code of Federal Regulations? Discussion: As discussed above, at Part III.B. and Part III.C., OPA’90 revoked OCSLAA, but OPA’90 (33 U.S.C. 2751(b) and 33 U.S.C. 2716(h)) preserved the force and effect of certain regulations under prior law, including the OCSLAA Rule’s evidence of financial responsibility regulations, until they were superseded by regulations contemplated by OPA’90. The Interim Rule, therefore, struck certain provisions of the OCSLAA Rule to eliminate obvious conflicts with the OPA’90 Claims Procedures, but left removal of the remaining provisions of the OCSLAA Rule for future rulemaking. Since 1992, a number of regulations have been promulgated that supersede, or appear to overlap with, the remaining provisions of the OCSLAA Rule. The Coast Guard is consequently considering whether to further amend the OCSLAA Rule or remove its remaining provisions entirely from the Code of Federal Regulations. We, therefore, invite you to comment on whether the OCSLAA Rule should be removed from the Code of Federal Regulations, in whole or in part. E. Questions Concerning the Regulatory Analysis for This Rulemaking 1. Claims Procedures (33 CFR Part 136)—Economic Analysis If you have experience with the Claims Procedures, we invite you to respond to the following questions. Please provide as much quantitative data and source documentation as possible in support of your responses to each question, so that we may incorporate your experience into the regulatory analysis for this rulemaking. Question 24. How much time did you spend and what were your costs associated with reading the Claims Procedures (33 CFR part 136) regulations? Question 25. If you have experience as a claimant to the Fund, how much time did you spend and what were your costs associated with preparing each of your claims? Question 26. If you have experience as a claimant to the Fund, how much PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 time did you spend and what were your costs associated with responding to any requests by the NPFC for supplemental or clarifying information concerning each of your claims? Question 27. If you have experience as a claimant, how much time did you spend and what were your costs associated with any claim reconsideration requests? Question 28. If you have experience as a responsible party or guarantor, how much time did you spend and what were your costs associated with preparing and publishing the required advertisement? Question 29. What, if any, provisions of the Claims Procedures have you found to be burdensome or costly, and what were your burdens or costs? Question 30. If you have ideas for specific amendments to the Claims Procedures that could reduce your burden or costs, what are they and to what extent would they reduce your burden or costs? 2. Claims Procedures (33 CFR Part 136)—Small Entities Analysis If you are a small entity (i.e., a small business or not-for-profit organization that is independently owned and operated and is not dominant in the field, or a governmental jurisdiction with a population of less than 50,000) with experience with the Claims Procedures, we invite you to respond to the following questions. Please provide as much quantitative data and source documentation as possible in support of your responses to each question, so that we may incorporate your experience into the regulatory analysis for this rulemaking. Question 31. If you have experience with the Claims Procedures (33 CFR part 136), what industry (e.g., North American Industry Classification System (NAICS) Code) and what type of small entity do you represent? Question 32. If you have experience with the Claims Procedures (33 CFR part 136), what, if any, provisions of the Claims Procedures (33 CFR part 136) are burdensome or costly because you are a small entity, and what were your burdens or costs? Question 33. If you have ideas for specific amendments to the Claims Procedures (33 CFR part 136) that could make them more flexible to accommodate your special needs as a small entity, what are they and to what extent would they reduce your burden or costs? E:\FR\FM\01NOP1.SGM 01NOP1 Federal Register / Vol. 76, No. 211 / Tuesday, November 1, 2011 / Proposed Rules 3. Removal of OCSLAA Rule (33 CFR Part 135)—Economic Analysis If you have experience with the OCSLAA Rule, we invite you to respond to the following question. Please provide as much quantitative data and source documentation as possible in support of your responses, so that we may incorporate your experience into the regulatory analysis for this rulemaking. Question 34. What, if any, provisions of the OCSLAA Rule (33 CFR part 135) have you found to be burdensome or costly, and what were your burdens or costs? 4. Removal of the OCSLAA Rule (33 CFR Part 135)—Small Entities Analysis If you are a small entity (i.e., a small business, not-for-profit organization that is independently owned and operated and are not dominant in the field, or a governmental jurisdiction with a population of less than 50,000) with experience with the OCSLAA Rule, we invite you to respond to the following questions. Please provide as much quantitative data and source documentation as possible in support of your responses to each question, so that we may incorporate your experience into the regulatory analysis for this rulemaking. Question 35. If you have experience with the OCSLAA Rule (33 CFR part 135), what industry (e.g., NAICS Code) and what type of small entity do you represent? Question 36. If you have experience with the OCSLAA Rule (33 CFR part 135), what, if any, provisions of that part have you found to be burdensome or costly because you are a small entity, and what were your burdens or costs? Discussion: The Coast Guard will be conducting a regulatory assessment for this rulemaking. To ensure we have the best information for the assessment, we invite you to respond to questions 24 through 36. Please identify the specific provisions that you think would affect you. Please describe the impacts, and quantify any costs and/or benefits of the provisions to the extent possible. emcdonald on DSK5VPTVN1PROD with PROPOSALS F. Other Issues Question 37. Are there any issues concerning this rulemaking that were not mentioned above or in the 1992 Comments, that you would like us to consider? We will review and analyze all public comments received in order to develop the SNPRM. This notice is issued under authority of 33 U.S.C. 2713(e), 33 U.S.C. 2714(b), and 33 U.S.C. 2716(h). VerDate Mar<15>2010 15:55 Oct 31, 2011 Jkt 226001 Dated: October 26, 2011. William R. Grawe, Acting Director, National Pollution Funds Center, U.S. Coast Guard. [FR Doc. 2011–28189 Filed 10–31–11; 8:45 a.m.] BILLING CODE 9110–04–P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 167 [USCG–2009–0765] Port Access Route Study: In the Approaches to Los Angeles-Long Beach and in the Santa Barbara Channel Coast Guard, DHS. Notice of availability of study AGENCY: ACTION: results. The Coast Guard announces the availability of a Port Access Route Study (PARS) which evaluated the continued applicability of and the potential need for modifications to the traffic separation schemes in the approaches to Los Angeles-Long Beach and in the Santa Barbara Channel. The study was completed in June 2011. This notice summarizes the study and final recommendation. SUMMARY: Comments and material received from the public, as well as documents mentioned in this preamble, as being available in the docket, are part of docket USCG–2009–0765 and are available online by going to https:// www.regulations.gov, inserting USCG– 2009–0765 in the ‘‘Keyword’’ box, and then clicking ‘‘Search.’’ This material is also available for inspection or copying at the 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, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions concerning this notice, contact Lieutenant Lucas Mancini, Eleventh Coast Guard District, telephone (510) 437–3801, email Lucas.W.Mancini@uscg.mil. If you have questions on viewing the docket, contact Renee V. Wright, Program Manager, Docket Operations, (202) 366– 9826. Definitions: The following definitions should help the reader to understand terms used throughout this document: Marine Environment, as defined by the Ports and Waterways Safety Act, ADDRESSES: PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 67395 means the navigable waters of the United States and the land resources therein and thereunder; the waters and fishery resources of any area over which the United States asserts exclusive fishery management authority; the seabed and subsoil of the Outer Continental Shelf of the Unites States, the resources thereof and the waters superjacent thereto; and the recreational, economic, and scenic values of such waters and resources. Precautionary area means a routing measure comprising an area within defined limits where vessels must navigate with particular caution and within which the direction of traffic flow may be recommended. Traffic lane means an area within defined limits in which one-way traffic is established. Natural obstacles, including those forming separation zones, may constitute a boundary. Traffic Separation Scheme or TSS means a routing measure aimed at the separation of opposing streams of traffic by appropriate means and by the establishment of traffic lanes. Vessel routing system means any system of one or more routes or routing measures aimed at reducing the risk of casualties; it includes traffic separation schemes, two-way routes, recommended tracks, areas to be avoided, no anchoring areas, inshore traffic zones, roundabouts, precautionary areas, and deep-water routes. SUPPLEMENTARY INFORMATION: Background and Purpose The Coast Guard published a notice of study in the Federal Register on April 7, 2010 (75 FR 17562), entitled ‘‘Port Access Route Study: In the Approaches to Los Angeles-Long Beach and in the Santa Barbara Channel’’ and completed the study in June, 2011. The study covered the geographic area with a northern boundary at 34°30′ N; a western boundary at 121°00′ W; a southern boundary at 33°15′ N; and an eastern boundary along the shoreline. This area encompasses the traffic separation schemes in the Santa Barbara Channel and in the approaches to Los Angeles-Long Beach; and the approach to the San Pedro Channel from the Pacific Ocean, particularly the area south of San Miguel, Santa Rosa, Santa Cruz, and Anacapa Islands; and north of San Nicolas, Santa Barbara, and Santa Catalina Islands where an increase in vessel traffic has been identified. The primary purpose of the study was to reconcile the need for safe access routes with other reasonable waterway uses, to the extent practical. The goal of the study was to help reduce the risk of marine casualties and increase the E:\FR\FM\01NOP1.SGM 01NOP1

Agencies

[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]


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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.

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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\
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    \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)).
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    \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.
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    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\
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    \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

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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.
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    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