[Federal Register Volume 76, Number 211 (Tuesday, November 1, 2011)]
[Proposed Rules]
[Pages 67385-67395]
From the Federal Register Online via the Government Publishing 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removed certain conflicting and superseded regulations from the Code of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 http://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: http://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
[email protected]. 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 http://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 http://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 http://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).
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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.
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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.
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\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.
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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\
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\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.
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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 http://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''.)
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\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.
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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.
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\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.
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After you have entered your comments and contact information, save
the matrix document again. Then submit the matrix document to the
public docket using any of the methods discussed in ADDRESSES. If you
choose to upload the matrix document to the public docket
electronically, follow the instructions for submitting comments to the
public docket electronically provided above in the section of this
Notice of Inquiry titled ``Public Participation and Request for
Comments'' under ``Submitting comments''.
V. Notice of Inquiry Questions
A. Question Concerning Your Interest in the Rulemaking
Question 1. What interest group do you belong to or represent?
Discussion: Knowing what interest group a commenter belongs to or
represents helps us understand the comments we receive. This
information, however, is not always clear from the letterhead used by
the commenter. We, therefore, invite you to let us know what interest
group you belong to, or represent, by responding to question 1. For
example, you may be, or represent, a State government or political
subdivision, an Indian tribe, a Federal, State or Indian tribe natural
resource trustee, an oil spill response organization, or other public
or private claimant; a responsible party or guarantor; a facility
owner, operator, licensee, lessee or permittee; a vessel owner,
operator or demise charterer; an industry association; or other
interested individual, business, public interest association, agency of
the U.S. Government or other public agency.
B. Questions Concerning the 1992 Comments on the Interim Rule
Question 2. What, if any, issues raised in the 1992 Comments do you
believe it would be helpful for the Coast Guard to address in the
SNPRM?
Question 3. What, if any, issues raised in the 1992 Comments do you
believe no longer need to be addressed?
Discussion: The Coast Guard has reviewed and considered the 1992
Comments on the Interim Rule. We believe that some of the issues raised
by the 1992 Comments reflected the public's lack of experience with the
Claims Procedures at that time, and have been resolved through
implementation of 33 CFR part 136 and the public's increased
familiarity with the OPA'90 claims process.
We do not plan to revisit issues raised in the 1992 Comments that
appear to have been resolved unless the public expresses interest in
our doing so. We, therefore, invite you to review the 1992 Comments and
alert us to issues you would like us to address. We are particularly
interested in hearing from you if you submitted a 1992 Comment, if you
have been an OPA'90 claimant to the Fund or a responsible party or
guarantor, or if you have other experience with the OPA'90 Claims
Procedures or the OCSLAA Rule.
If you respond to either question 2 or 3, please identify each of
the 1992 Comments you are responding to, and provide your views on why
you believe it would be helpful for us to address the
[[Page 67392]]
issues in the rulemaking, or why it is no longer necessary for an issue
to be addressed in the rulemaking. You may use the ``1992 Comments
Matrix'' to respond to questions 2 or 3.
C. Questions Concerning the Claims Procedures (33 CFR Part 136)
1. Rule Organization and Other Clarifications to the Claims Procedures
Question 4. What organizational changes would improve the Claims
Procedures (33 CFR Part 136)?
Question 5. What, if any, regulatory gaps would you like us to
address in the Claims Procedures (33 CFR part 136)?
Question 6. Are there procedures in the Claims Procedures (33 CFR
part 136) that you would like us to streamline?
Question 7. Are there procedures in the Claims Procedures (33 CFR
part 136) that you would like us to clarify or explain in greater
detail in the regulations?
Question 8. What, if any, terms used in the Claims Procedures (33
CFR part 136) would you like us to define or clarify?
Discussion: Executive Order (E.O.) 12866 requires that regulations
be simple and easy to understand. The goals of these requirements
include minimizing the potential for uncertainty, and ensuring the
public understands important regulatory requirements.
The Coast Guard is, therefore, considering amendments to the Claims
Procedures, to clarify the presentation and address regulatory gaps.
For example, we are considering reorganizing the rule along certain
lines, possibly including the following:
Moving the source designation and claims advertising
regulations, which currently appear in subpart D, earlier in the rule
to a new subpart B, to reflect the chronological order in which matters
arise following an oil spill incident;
Creating a separate subpart for natural resource damage
trustee claims under 33 U.S.C. 2702(b)(2)(A), which may only be brought
by Federal, State, Indian tribe, and certain foreign trustees (see 33
U.S.C. 2707);
Adding a separate subpart for responsible party claims,
which are not expressly addressed in the current rules;
Creating a separate subpart for the claims determination
and reconsideration procedures; and
Consolidating certain generally-applicable requirements in
subpart A.
Other possible amendments to the regulatory text might include:
Stating the procedures in simpler terms (plain language); explaining
other requirements in greater detail; and adding or amending the
definitions for terms that may not be well understood. The Coast Guard
invites you to comment on whether these types of clarifying changes
would be helpful, and on any other recommendations you might have for
clarifying the Claims Procedures.
2. Claims Procedures Regulatory Deadlines
Question 9. Have you been able to work within the regulatory
deadlines in the Claims Procedures (33 CFR part 136)?
Question 10. Do you have a comment on changing the deadlines in
Sec. 136.115(b) and Sec. 136.115(d) to 90 days after mailing by the
Director, NPFC?
Discussion: The Claims Procedures establish a number of different
deadlines. Some of the deadlines are required by OPA'90, such as those
in 33 U.S.C. 2714 and subpart D of the Claims Procedures concerning
source designations and advertising. Changes to these statutory
deadlines would require a change in the law. The statutory deadlines
are, therefore, outside the scope of this regulation.
Other Claims Procedures deadlines, however, are entirely
regulatory. For example, Sec. 136.115(b) establishes a 60-day
regulatory deadline for claimants to accept an offer of settlement by
the Fund, and Sec. 136.115(d) establishes two deadlines, a 60-day or
30-day deadline, for the NPFC to receive requests for reconsideration.
We are considering changing these regulatory deadlines to 90 days
after mailing by the Director, NPFC, to simplify the rule and minimize
confusion between these deadlines. The Coast Guard, therefore, invites
your views on whether the Claims Procedures deadlines are clear, and
whether the changes we are considering to the deadlines in Sec.
136.115, or to any other regulatory deadlines in part 136, would be
helpful. (We are not requesting comment on any statutory deadline.)
3. Claims Submission Requirements
Question 11. Do you have any comment on amending Sec. 136.105(c)
to allow claimants to submit claims that are not ``signed in ink''
originals?
Question 12. What, if any, recommendations do you have on limits
the Coast Guard could consider placing on claims submissions to ensure
their authenticity and reliability?
Question 13. What, if any, other changes to the claims submission
requirements in subparts A and B of the Claims Procedures, (33 CFR part
136) are needed or would be helpful?
Discussion: The Claims Procedures (Sec. 136.105(c)) require that
claim submissions be ``signed in ink''. The Interim Rule, however, pre-
dated substantial legal precedent recognizing the authenticity and
reliability of electronic documents, such as scanned documents, which
can be submitted almost instantly by electronic mail, and facsimile
copies of original documents.
The Coast Guard is, therefore, considering removing the ``signed in
ink'' requirement (Sec. 136.105(c)) in order to take advantage of
technological advances in communications. Claimants would still be
required to certify that the claim accurately reflects all material
facts. The Coast Guard invites your views on this change.
The Coast Guard also invites your views on whether any other
changes to the other claims submission requirements in subparts A and B
of the Claims Procedures are needed or would be helpful.
4. Claims Determination and Reconsideration Procedures
Question 14. Do you have any comment about removing the requirement
in Sec. 136.115(c) to send claims denials by certified or registered
mail?
Question 15. What, if any, other comments do you have on the claims
determination and reconsideration procedures?
Discussion: The Claims Procedures (Sec. 136.115(c)) state that the
NPFC will send claims denial determinations to claimants by certified
or registered mail. This increases the Coast Guard's administrative
costs. It also may not be helpful to the public since claims
determinations can be, and are now also, transmitted electronically
(e.g., electronic mail and facsimile transmissions).
Therefore, although the Coast Guard would continue to send all
determinations to claimants by reliable means, including by U.S. mail,
we are considering removing the certified or registered mail
requirement from the regulations, and we invite your comment on this
change. The Coast Guard also invites you to comment on any other aspect
of the claims determination and reconsideration procedures.
5. Distinguishing the Different Categories of Claims Due to Injury,
Loss or Destruction to, or Loss of Use of, Natural Resources
Question 16. What, if any, clarification is needed concerning the
[[Page 67393]]
distinctions in OPA'90 and the Claims Procedures between the different
categories of claims resulting from the injury, loss or destruction to,
or loss of use of, natural resources due to an oil spill incident?
Discussion: Under OPA'90 (33 U.S.C. 2702(b)(2)), claims may be made
to the Fund for four distinct categories of damages due to injury, loss
or destruction to, or loss of use of, natural resources as a result of
an oil spill incident: (1) Damages for loss of subsistence use of
natural resources, which may only be claimed by a person who so uses
natural resources which have been injured, destroyed or lost, without
regard to the ownership or management of the resources; (2) damages
equal to the loss of profits or impairment of earning capacity due to
the injury, destruction, or loss of natural resources, which are
recoverable by any claimant; (3) damages for injury, loss or
destruction to, or loss of use of, natural resources as a result of an
oil spill, which can only be recovered by Federal trustees, State
trustees, Indian tribe trustees, and certain foreign trustees; and (4)
damages equal to the net loss of government revenue (i.e., taxes,
royalties, rents, fees, or net profit shares) due to the injury,
destruction, or loss of natural resources, which can only be recovered
by the Government of the United States, a State or a political
subdivision thereof.\8\ Issues have, however, come up over the years
indicating that the distinctions between these claims categories,
particularly the distinctions between subsistence use loss and other
claim categories, may not be well understood.
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\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 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.
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.
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 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?
[[Page 67395]]
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.
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).
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