[Federal Register Volume 59, Number 151 (Monday, August 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19163]


[[Page Unknown]]

[Federal Register: August 8, 1994]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 11

RIN 1090-AA21

 

Natural Resource Damage Assessments

AGENCY: Department of the Interior.

ACTION: Proposed rule.

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SUMMARY: The Department of the Interior is proposing to amend the 
regulations for assessing natural resource damages resulting from a 
discharge of oil into navigable waters under the Clean Water Act or a 
release of a hazardous substance under the Comprehensive Environmental 
Response, Compensation, and Liability Act. The regulations provide 
procedures that designated Federal, State, and Indian tribe natural 
resource trustees may use to obtain compensation from potentially 
responsible parties for injuries to natural resources. The regulations 
provide an administrative process for conducting assessments as well as 
two types of technical procedures for the actual determination of 
injuries and damages. ``Type A'' procedures are standard procedures for 
simplified assessments requiring minimal field observation in cases of 
minor discharges or releases in certain environments. ``Type B'' 
procedures are site-specific procedures for detailed assessments in 
other cases.
    The Department of the Interior is proposing to amend the 
regulations to include an additional type A procedure for assessing 
natural resource damages in Great Lakes environments. The proposed 
procedure incorporates a computer model called the Natural Resource 
Damage Assessment Model for Great Lakes Environments, Version 1.31 
(NRDAM/GLE). The same modelling approach used to develop today's 
proposed NRDAM/GLE is being used to develop a revised type A procedure 
for coastal and marine environments that will soon be issued as a 
separate proposed rule.
    The Department is also proposing two amendments that would affect 
all type A procedures. The Department is proposing to revise the 
conditions under which type A and type B procedures can both be used in 
the same assessment and to make explicit the scope of judicial review 
of assessments performed using type A procedures.

DATES: Comments will be accepted through November 7, 1994.

ADDRESSES: Comments should be sent in duplicate to the Office of 
Environmental Policy and Compliance, ATTN: NRDA Rule-GLE, Room 2340, 
Department of the Interior, 1849 C Street, NW, Washington, DC 20240, 
telephone: (202) 208-3301 (regular business hours 7:45 a.m. to 4:15 
p.m., Monday through Friday). Computer diskettes containing the NRDAM/
GLE can be obtained from the same office.

FOR FURTHER INFORMATION CONTACT: Stephen F. Specht at (202) 208-3301, 
or [email protected] on Internet.

SUPPLEMENTARY INFORMATION: This preamble is organized as follows:

I. Background
    A. Statutory Provisions
    B. Overview of the Department's Natural Resource Damage 
Assessment Regulations
    C. History of this Rulemaking
    D. Related Rulemakings
II. Phases of an Assessment Incorporating a Type A Procedure
    A. Preassessment Phase
    B. Assessment Plan Phase
    C. Assessment Phase
    D. Post-Assessment Phase
III. Nature of Type A Procedures
    A. Use of Average Values
    B. Regulatory Status of Type A Procedures
IV. NRDAM/GLE
    A. Overview
    B. User-Supplied Data Inputs
    C. Geographic Information System
    D. Submodels
V. Conditions Regarding Use of the NRDAM/GLE
    A. Primary Conditions
    B. Secondary Conditions
VI. Response to Comments

I. Background

A. Statutory Provisions

    The Department of the Interior (the Department) is proposing to 
amend the regulations for assessing natural resource damages under the 
Comprehensive Environmental Response, Compensation, and Liability Act, 
as amended (42 U.S.C. 9601 et seq.) (CERCLA) and the Clean Water Act, 
as amended (33 U.S.C. 1251 et seq.) (CWA). Under CERCLA, certain 
categories of potentially responsible parties (PRPs) are liable for 
natural resource damages resulting from a release of a hazardous 
substance. CERCLA sec. 107(a). Natural resource damages are monetary 
compensation for injury to, destruction of, or loss of natural 
resources. CERCLA section 107(a)(4)(C). CWA creates similar liability 
for natural resource damages resulting from discharges of oil into 
navigable waters. CWA sec. 311(f).
    Only designated natural resource trustees may recover natural 
resource damages. CWA recognizes the authority of Federal and State 
officials to serve as natural resource trustees. CERCLA recognizes the 
authority of Federal and State officials as well as Indian tribes to 
act as natural resource trustees.
    Damages may be recovered for those natural resource injuries that 
are not fully remedied by response actions as well as public economic 
values lost from the date of the discharge or release until the 
resources have fully recovered. All sums recovered in compensation for 
natural resource injuries must be used to restore, rehabilitate, 
replace, or acquire the equivalent of the injured natural resources. 
CERCLA sec. 107(f)(1). Trustee officials may also recover the 
reasonable costs of assessing natural resource damages.
    CERCLA requires the promulgation of regulations for the assessment 
of natural resource damages resulting either from a discharge of oil 
into navigable waters under CWA or from a release of a hazardous 
substance under CERCLA. CERCLA section. 301(c). The regulations are to 
identify the ``best available'' procedures for assessing natural 
resource damages. CERCLA section. 301(c)(2). CERCLA requires that the 
natural resource damage assessment regulations include two types of 
assessment procedures. ``Type A'' procedures are ``standard procedures 
for simplified assessments requiring minimal field observation.'' 
CERCLA section. 301(c)(2)(A). ``Type B'' procedures are ``alternative 
protocols for conducting assessments in individual cases.'' CERCLA sec. 
301(c)(2)(B). Assessments performed by Federal and State trustee 
officials in accordance with these regulations receive a rebuttable 
presumption in court. CERCLA sec. 107(f)(2)(C). The promulgation of 
these regulations was delegated to the Department. E.O. 12316, as 
amended by E.O. 12580.
    The natural resource damage provisions of CWA were amended by the 
Oil Pollution Act (33 U.S.C. 2701 et seq.) (OPA). Among other things, 
OPA recognized the authority of Indian tribes to sue for natural 
resource damages resulting from discharges of oil into navigable waters 
and authorized the National Oceanic and Atmospheric Administration 
(NOAA) to develop new natural resource damage assessment regulations 
for discharges of oil into navigable waters. The Department is 
coordinating its rulemakings with NOAA to ensure, to the maximum extent 
appropriate, that consistent processes are established for assessing 
natural resource damages under CERCLA and OPA.
    OPA provides that any rule in effect under a law replaced by OPA 
will continue in effect until superseded. OPA sec. 6001(b). In 
particular, Senate committee report language makes it clear that 
``[t]he existing Interior Department rules * * * may be used with a 
rebuttable presumption in the interim'' until NOAA promulgates new 
regulations. S. Rep. No. 101-94, 101st Cong., 1st Sess. 15 (1990). 
Therefore, until NOAA promulgates its regulations, the Department's 
regulations may be used to assess natural resource damages under OPA.

B. Overview of the Department's Natural Resource Damage Assessment 
Regulations

    The Department has published various final rules for the assessment 
of natural resource damages: 51 FR 27674 (Aug. 1, 1986); 52 FR 9042 
(March 20, 1987); 53 FR 5166 (Feb. 22, 1988); 53 FR 9769 (March 25, 
1988). These rulemakings are codified in the Code of Federal 
Regulations at 43 CFR part 11. The Department also recently published a 
final rule revising the administrative process and the type B 
procedures that has not yet been codified in the Code of Federal 
Regulations. 59 FR 14261 (March 25, 1994).
    The Department's natural resource damage assessment regulations 
provide an administrative process for conducting assessments as well as 
technical methods for the actual determination of injuries and damages. 
Assessments performed under the Department's regulations consist of 
four phases: The Preassessment Phase, the Assessment Plan Phase, the 
Assessment Phase, and the Post-Assessment Phase.
    The Preassessment Phase consists of the activities that precede the 
actual assessment. For example, upon detecting or receiving 
notification of a discharge or release, trustee officials decide, based 
on a number of criteria, whether further assessment actions are 
warranted. This decision is documented in the Preassessment Screen 
Determination. For more information on the Preassessment Phase, see 
subpart B of 43 CFR part 11.
    The Assessment Plan Phase includes the preparation of a written 
Assessment Plan. The Assessment Plan, which is subject to public review 
and comment, assists the involvement of PRPs, other trustee officials, 
the general public, and any other interested parties. The Assessment 
Plan also helps ensure that assessments are performed at a reasonable 
cost. For more information on the Assessment Plan Phase, see subpart C 
of 43 CFR part 11, as amended by 59 FR 14281-83.
    During the Assessment Phase, trustee officials conduct the work 
described in the Assessment Plan. The work consists of three steps: 
Injury Determination; Quantification; and Damage Determination. In 
Injury Determination, trustee officials determine whether any natural 
resources have been injured. If trustee officials determine that 
resources have been injured, they proceed to Quantification, in which 
they quantify the resulting change in baseline conditions. ``Baseline'' 
conditions are the conditions that would have existed had the discharge 
or release not occurred. Finally, in Damage Determination, trustee 
officials calculate the monetary compensation to be sought as damages 
for the natural resource injuries.
    When a type A procedure is utilized, trustee officials perform 
Injury Determination, Quantification, and Damage Determination through 
the use of a standardized procedure involving minimal field work. The 
Department is developing different type A procedures for different 
environments in stages. Only one type A procedure has been included in 
the regulations to date. That type A procedure incorporates a computer 
model, called the Natural Resource Damage Assessment Model for Coastal 
and Marine Environments, Version 1.2 (NRDAM/CME), to perform Injury 
Determination, Quantification, and Damage Determination for minor 
discharges or releases in coastal or marine environments. This proposed 
rule would amend the regulations to include an additional type A 
procedure to perform Injury Determination, Quantification, and Damage 
Determination for minor discharges or releases in Great Lakes 
environments. The proposed procedure incorporates a computer model 
called the Natural Resource Damage Assessment Model for Great Lakes 
Environments, Version 1.31 (NRDAM/GLE). For more information on use of 
a type A procedure during the Assessment Phase, see subpart D of 43 CFR 
part 11.
    When a type A procedure is not applicable or does not address all 
types of natural resource injuries and lost public economic values, 
trustee officials may use type B procedures instead of or in addition 
to a type A procedure. When type B procedures are utilized, trustee 
officials perform Injury Determination, Quantification, and Damage 
Determination through the use of site-specific studies. The regulations 
provide a range of alternative type B scientific and economic 
methodologies from which trustee officials may choose. For more 
information on use of type B procedures during the Assessment Phase, 
see subpart E of 43 CFR part 11, as amended by 59 FR 14283-87.
    During the Post-Assessment Phase, trustee officials prepare a 
Report of Assessment detailing the results of the Assessment Phase. 
Trustee officials present the Report of Assessment to the PRPs along 
with a demand for damages and assessment costs. If a PRP does not agree 
to pay within 60 days, the trustee officials may file suit. Federal and 
State trustee officials receive a rebuttable presumption of correctness 
for assessments performed in accordance with the Preassessment Phase, 
Assessment Plan Phase, Assessment Phase, and Post-Assessment Phase 
procedures set forth in the regulations. Once damages have been awarded 
or settlement has been reached, trustee officials establish an account 
for the recovered damages and prepare a Restoration Plan for use of the 
recovered damages. For more information on the Post-Assessment Phase, 
see subpart F of 43 CFR part 11, as amended by 59 FR 14287.

C. History of this Rulemaking

    On June 2, 1988, the Department announced its intent to develop a 
type A procedure for Great Lakes environments. 53 FR 20143. On July 14, 
1989, the U.S. Court of Appeals for the District of Columbia Circuit 
issued two decisions that affected the development of the type A 
procedure for Great Lakes environments.
    State of Ohio v. United States Department of the Interior (Ohio v. 
Interior) dealt with a challenge to the administrative process and type 
B procedures. 880 F.2d 432 (D.C. Cir. 1989). The court upheld various 
aspects of the administrative process and type B procedures but ordered 
the Department to revise the type B procedures to reflect the statutory 
preference for using restoration costs as the measure of natural 
resource damages. The court used the term ``restoration costs'' to 
encompass the cost of restoring, rehabilitating, replacing, and/or 
acquiring the equivalent of the injured natural resources. The court 
also ordered the Department to revise the type B procedures to allow 
for the recovery of all reliably calculated economic values lost to the 
public as a result of the injury to natural resources.
    State of Colorado v. United States Department of the Interior 
(Colorado v. Interior) dealt with a challenge to the type A procedure 
for coastal and marine environments. 880 F.2d 481 (D.C. Cir. 1989). 
Colorado v. Interior upheld the Department's sequential approach to 
developing type A procedures but urged the Department to develop 
additional type A procedures to address as many different cases as 
possible. The court remanded the NRDAM/CME, however, based on the 
reasoning in the Ohio v. Interior decision, to permit the Department to 
allow for the calculation of restoration costs. The NRDAM/CME, as 
originally developed, calculated damages based solely on lost public 
use of the injured resources.
    On September 22, 1989, the Department announced its intent to 
modify the development of the NRDAM/GLE to conform with Ohio v. 
Interior and Colorado v. Interior. 54 FR 39015. The Department 
solicited comment on means of incorporating restoration costs and all 
reliably calculated lost public economic values into the NRDAM/GLE.

D. Related Rulemakings

    There are several other ongoing natural resource damage assessment 
rulemakings.
1. CERCLA
    The Department anticipates publishing a proposed rule to revise the 
NRDAM/CME to comply with Colorado v. Interior and the statutory 
biennial review requirement in October 1994. The same modelling 
approach used to develop today's proposed NRDAM/GLE is being used to 
revise the NRDAM/CME.
    The Department intends to develop additional type A procedures, as 
is feasible and appropriate, in future rulemakings. The Department 
plans to convene a public meeting no later than June 1, 1995, to 
discuss additional environments for which type A procedures may be 
feasible.
    On March 25, 1994, the Department published a final rule revising 
the administrative process and the type B procedures in partial 
response to Ohio v. Interior. 59 FR 14261. The final rule addresses all 
aspects of the court remand other than the use of a particular economic 
methodology, known as contingent valuation (CV), to estimate lost 
nonuse values of injured resources. Nonuse values are those economic 
values that are not dependent on use of a resource and include the 
value of knowing that the resource exists and knowing that a resource 
will be available for future generations. On May 4, 1994, the 
Department published a notice of proposed rulemaking addressing CV as a 
type B procedure for estimating lost nonuse values. 59 FR 23097. The 
comment period on the notice was extended through October 7, 1994. 59 
FR 32175 (June 22, 1994).
    CERCLA mandates biennial review and revision, as appropriate, of 
the Department's natural resource damage assessment regulations. The 
Department will soon publish an advance notice of proposed rulemaking 
to begin the biennial review of the administrative process and type B 
procedures.
2. OPA
    On January 7, 1994, NOAA published a proposed rule for assessing 
natural resource damages resulting from oil discharges into navigable 
waters under OPA. 59 FR 1062. NOAA has indicated that it is likely to 
allow for use of the NRDAM/GLE after the Department publishes a final 
rule incorporating the NRDAM/GLE. 59 FR 1124-25.

II. Phases of an Assessment Incorporating a Type A Procedure

    This proposed rule would not change the administrative process for 
performing a natural resource damage assessment already established 
under the Department's regulations. Under the proposed rule, an 
assessment incorporating use of the proposed NRDAM/GLE would entail the 
same four phases already provided for in 43 CFR part 11: The 
Preassessment Phase, the Assessment Plan Phase, the Assessment Phase, 
and the Post-Assessment Phase. This proposed rule would provide an 
additional type A procedure for trustee officials to use during the 
Assessment Phase. The proposed procedure would be available only for 
oil discharges or hazardous substance releases that enter Great Lakes 
environments.

A. Preassessment Phase

    During the Preassessment Phase of an assessment incorporating use 
of the proposed NRDAM/GLE, trustee officials would conduct the 
activities already provided for in subpart B of 43 CFR part 11. These 
activities would include the preparation of a Preassessment Screen 
Determination documenting the trustee officials' decision that 
additional assessment work was warranted.

B. Assessment Plan Phase

    Upon determining that additional assessment work was warranted, 
trustee officials would begin the Assessment Plan Phase. The Assessment 
Plan Phase of an assessment incorporating use of the proposed NRDAM/GLE 
would include the trustee coordination and PRP identification and 
involvement activities already provided for in subpart C of 43 CFR part 
11, as amended by 59 FR 14281. Trustee officials would also prepare a 
written Assessment Plan documenting their decision to use the NRDAM/GLE 
as well as the incident-specific information they intend to use as data 
inputs to the NRDAM/GLE. The Assessment Plan would then be made 
available for public review and comment as already provided in 43 CFR 
11.32, as amended by 59 FR 14282.
1. Conditions Regarding Use of the NRDAM/GLE
    To assist trustee officials in deciding whether to use a type A 
procedure, type B procedures, or a combination, the Department is 
proposing several conditions regarding use of the NRDAM/GLE. Under the 
proposed rule, whenever a discharge or release entered a Great Lakes 
environment, trustee officials would determine if the conditions were 
met. A Great Lakes environment is defined as any area within Lake 
Superior, Lake Michigan, Lake Huron, Lake Erie, Lake Ontario, Lake St. 
Clair, the St. Mary River, the St. Clair River, the Detroit River, the 
Niagara River, the St. Lawrence River, or their contiguous wetlands or 
shorelines. Trustee officials would include in the Assessment Plan 
their determinations of whether the conditions regarding use of the 
NRDAM/GLE were met.
    The goal of the natural resource damage assessment process is to 
obtain as quickly and cost-effectively as possible the compensation due 
the public and to restore injured natural resources. Type B procedures 
can be considerably more expensive and time-consuming than type A 
procedures. Therefore, the Department believes that type A procedures 
should be used whenever applicable.
    Under the proposed rule, the conditions regarding use of the NRDAM/
GLE fall into two categories: Primary conditions and secondary 
conditions. The absence of any primary condition indicates that use of 
the NRDAM/GLE is inappropriate. The absence of any secondary condition 
does not indicate that use of the NRDAM/GLE is inappropriate but does 
indicate that the NRDAM/GLE might not address all types of natural 
resource injuries and lost public economic values.
    Under the proposed rule, if all primary and secondary conditions 
were met, trustee officials would be required to use the NRDAM/GLE to 
calculate all damages in order to get the rebuttable presumption. This 
approach would be consistent with the existing standards for use of the 
NRDAM/CME provided at 43 CFR 11.33.
    The proposed rule would further provide that if one or more primary 
conditions were not met, trustee officials would be required to use 
type B procedures to calculate all damages in order to obtain the 
rebuttable presumption. This approach differs from the existing 
standards for use of the NRDAM/CME, which do not specify particular 
conditions under which trustee officials must use type B procedures 
instead of the type A procedure.
    Finally, the proposed rule would provide that if all primary 
conditions were met but one or more secondary conditions were not met, 
trustee officials could use the NRDAM/GLE, type B procedures, or a 
combination, and obtain a rebuttable presumption. Trustee officials 
would decide which assessment procedures to use based on considerations 
of ``cost effectiveness'' and ``reasonable cost,'' as those terms are 
defined in 43 CFR 11.14. Trustee officials would consider whether the 
benefits of the increased accuracy provided by type B procedures would 
offset the anticipated additional cost of using type B procedures, and 
whether the anticipated damages would exceed the anticipated cost of 
using type B procedures. Trustee officials would document the 
determination whether to use the NRDAM/GLE, type B procedures, or a 
combination in the Assessment Plan.
    The proposed rule would also require trustee officials to use type 
B procedures, even if they determined that use of the NRDAM/GLE was 
appropriate, whenever a PRP submitted a written request for use of type 
B procedures and agreed within a time frame acceptable to the trustee 
officials to advance the cost of using type B procedures.
    Section V of this preamble contains additional information on the 
conditions regarding use of the NRDAM/GLE.
2. Use of Combined Type A and Type B Procedures
    Existing 43 CFR 11.15(a)(1) provides that, in order to obtain a 
rebuttable presumption, trustee officials generally must use either a 
type A procedure or type B procedures during the Assessment Phase but 
not both. Under the existing regulations, the only time that trustee 
officials can use both type A and type B procedures for the same 
discharge or release is when the procedures address different resources 
and do not result in double counting of damages.
    The Department is proposing to delete the existing restriction in 
43 CFR 11.15(a)(1) concerning use of both type A and type B procedures 
during the Assessment Phase and to make various conforming changes 
throughout the regulations. Under Sec. 11.33(c) of the proposed rule, 
if all primary conditions regarding use of the NRDAM/GLE were met but 
one or more secondary conditions were not met, trustee officials would 
be allowed to use type B procedures to calculate damages for types of 
natural resource injuries and lost public economic values that were not 
addressed by the NRDAM/GLE and use the NRDAM/GLE to calculate all other 
damages, provided there were no double recovery of damages. Trustee 
officials would also be allowed to calculate all damages through use of 
type B procedures provided such procedures were cost effective and 
could be performed at a reasonable cost. A trustee official's decision 
whether to use the NRDAM/GLE, type B procedures, or a combination 
during the Assessment Phase would be documented in the Assessment Plan.
    For example, one of the proposed secondary conditions regarding use 
of the NRDAM/GLE is that the primary injuries to biological resources 
are one or more of the following: Direct mortality resulting from 
short-term exposure to the discharged oil or released hazardous 
substance; direct loss of production resulting from short-term exposure 
to the discharged oil or released hazardous substance; indirect 
mortality resulting from food web losses; and indirect loss of 
production resulting from food web losses. Under the proposed rule, if 
all primary conditions regarding use of the NRDAM/GLE were met but 
there were significant sublethal injuries, trustee officials would be 
allowed to use type B procedures to calculate damages for those 
sublethal injuries and use the NRDAM/GLE to calculate all other 
damages, provided there were no double recovery of damages.
    Trustee officials who used both the NRDAM/GLE and type B procedures 
could prepare a single Assessment Plan, so long as it included all the 
necessary information about how they intended to use the NRDAM/GLE, how 
they intended to apply the type B procedures, and how they intended to 
ensure no double recovery. During the Assessment Phase, the NRDAM/GLE 
would be applied in compliance with Sec. 11.42 of the proposed rule, 
while the type B procedures would be applied in accordance with subpart 
E of 43 CFR part 11, as amended by 59 FR 14283. After applying the 
NRDAM/GLE and completing the type B procedures, trustee officials could 
prepare a single Report of Assessment detailing the results of both the 
NRDAM/GLE and the type B procedures.
    The proposed deletion of the restriction in 43 CFR 11.15(a)(1) 
concerning use of combined type A and type B procedures would 
temporarily leave trustee officials without guidance on determining 
when it is appropriate to use type B procedures in addition to the 
existing type A procedure for coastal and marine environments. The 
Department plans to publish a proposed rule revising the type A 
procedure for coastal and marine environments in October 1994. The 
Department intends to include standards in that proposed rule that will 
govern the use of type B procedures in addition to the revised NRDAM/
CME. The Department further intends to publish a final rule revising 
the type A procedure for coastal and marine environments within a few 
months after a final rule establishing the type A procedure for Great 
Lakes environments is published. Therefore, the Department believes 
that deletion of the existing restriction in 43 CFR 11.15(a)(1) in this 
rulemaking would be appropriate. However, the Department solicits 
comment on whether the existing restriction in 43 CFR 11.15(a)(1) 
should be retained with regard to the existing NRDAM/CME until the 
revised NRDAM/CME is promulgated.
3. User-Supplied Data Inputs
    If trustee officials decided to use the NRDAM/GLE, the Assessment 
Plan would also document the incident-specific information that they 
intend to use as data inputs to the NRDAM/GLE. Under the proposed rule, 
the NRDAM/GLE would supply most of the data used to determine injury 
and damages. However, the Department is proposing to require trustee 
officials to provide certain incident-specific information for use as 
data inputs to the NRDAM/GLE.
    Section IV.B of this preamble contains additional information on 
user-supplied data inputs to the NRDAM/GLE.

C. Assessment Phase

    After reviewing any comments received on the Assessment Plan, 
trustee officials would begin the Assessment Phase. The Assessment 
Phase of an assessment incorporating the NRDAM/GLE, like the Assessment 
Phase of an assessment incorporating type B procedures, would entail 
three steps: Injury Determination, Quantification, and Damage 
Determination. Under the proposed rule, these steps would be performed 
by the NRDAM/GLE.
    The proposed NRDAM/GLE performs Injury Determination through the 
Physical Fates Submodel and the Biological Effects Submodel. The 
Physical Fates Submodel determines the pathway of contamination. Injury 
is determined through the interaction of the Physical Fates Submodel 
and the Biological Effects Submodel.
    The proposed NRDAM/GLE performs Quantification through the 
Biological Effects Submodel. The NRDAM/GLE databases contain 
information about the baseline condition of natural resources in Great 
Lakes environments. The Biological Effects Submodel quantifies the 
change in baseline conditions as a result of the discharge or release.
    The proposed NRDAM/GLE performs Damage Determination through the 
Restoration Submodel and the Compensable Value Submodel. The 
Restoration Submodel estimates appropriate restoration costs. The 
Compensable Value Submodel calculates the economic values lost to the 
public pending the reestablishment of baseline conditions. These lost 
economic values are referred to as compensable values. Consistent with 
the Ohio v. Interior and Colorado v. Interior decisions, the proposed 
NRDAM/GLE adds compensable values and restoration costs, where 
appropriate, to produce a damage figure.
    Section IV.D of this preamble contains additional information on 
how the NRDAM/GLE performs Injury Determination, Quantification, and 
Damage Determination.

D. Post-Assessment Phase

    After using the NRDAM/GLE, trustee officials would perform the 
post-assessment activities already provided for in subpart F of 43 CFR 
part 11, as amended by 59 FR 14287, including preparation of a Report 
of Assessment. The proposed NRDAM/GLE provides a printed assessment 
report that summarizes the computations performed to derive the damage 
amount. Under the proposed rule, the Report of Assessment would 
include: the Preassessment Screen Determination; the Assessment Plan, 
which includes documentation of the trustee officials' determination to 
use the NRDAM/GLE and documentation of the incident-specific data 
inputs to the NRDAM/GLE; and the printed assessment report from the 
NRDAM/GLE.
    Trustee officials would present the Report of Assessment to the 
PRPs along with a demand for damages and assessment costs. Trustee 
officials may only recover their reasonable assessment costs. If 
trustee officials used the NRDAM/GLE, reasonable assessment costs would 
include: the cost of performing the Preassessment Phase and Assessment 
Plan Phase activities required under subparts B and C of 43 CFR part 
11; the cost of developing site-specific data inputs to the NRDAM/GLE; 
and the cost of using the NRDAM/GLE.
    If a PRP did not agree to pay within 60 days, trustee officials 
could file suit. Federal and State trustee officials would receive a 
rebuttable presumption of correctness for their assessments provided 
they complied with the proposed standards for use of the NRDAM/GLE as 
well as the Preassessment Phase, Assessment Plan Phase, and Post- 
Assessment Phase procedures set forth in the regulations.
    Once damages were awarded or a settlement reached, trustee 
officials would prepare a written Restoration Plan explaining how they 
intend to use the recovered damages to restore, rehabilitate, replace, 
and/or acquire the equivalent of the injured resources. The Restoration 
Plan would be made available for public comment and review.
    Under the proposed rule, trustee officials would have the 
discretion to determine the appropriate site-specific use of damage 
recoveries to restore, rehabilitate, replace, and/or acquire the 
equivalent of the injured resources and would not be restricted to 
implementing the general restoration methods that were used by the 
NRDAM/GLE for the calculation of damages.
    Type A procedures are designed to assess damages resulting from 
minor discharges or releases. Therefore, it may not always be practical 
to prepare a separate Restoration Plan for each award or settlement 
based on use of a type A procedure. Existing 43 CFR 11.93(d) provides 
that trustee officials may apply several type A awards to a single 
Restoration Plan, so long as the Plan is intended to address the same 
or similar injuries as those identified in each application of the type 
A procedure.

III. Nature of Type A Procedures

A. Use of Average Values

    CERCLA mandates that the type A procedures incorporate simplified 
procedures for conducting assessments with minimal field observation. 
CERCLA sec. 301(c)(2)(A). Standardized procedures for simplified 
assessments rely heavily on average rather than site-specific values. 
Therefore, a type A procedure may generate a damage figure that is less 
than, equal to, or greater than the damage figure that would have been 
calculated if type B procedures had been used for the same discharge or 
release. Nevertheless, Federal and State trustee officials who comply 
with the Department's regulations obtain a rebuttable presumption, 
regardless of whether they use type A or type B procedures. See CERCLA 
section 107(f)(2)(C).

B. Regulatory Status of Type A Procedures

    Type A procedures are developed as regulations. Therefore, once a 
type A procedure is promulgated as a final rule, the procedure can be 
changed only through a rulemaking by the Department. For example, the 
Department is proposing to have the NRDAM/GLE incorporated by reference 
in the natural resource damage assessment regulations. Thus, once the 
type A procedure for Great Lakes environments is promulgated as a final 
rule, trustee officials will have to use the version of the NRDAM/GLE 
incorporated in the final rule, without any alteration of the submodels 
or databases, in order to obtain a rebuttable presumption for an 
assessment using the type A procedure for Great Lakes environments.
    Moreover, CERCLA provides that any challenges to regulations 
promulgated under the statute must be made in the U.S. Court of Appeals 
for the District of Columbia Circuit within 90 days from the date of 
promulgation and cannot be made in any civil proceeding to obtain 
damages. CERCLA section 113(a). Therefore, once a type A procedure is 
promulgated as a final rule, any challenges to the workings, databases, 
or underlying structure of the procedure would have to be made within 
90 days of the date of promulgation rather than in a particular natural 
resource damage case.
    The Department is proposing to incorporate this statutory provision 
in the regulations by making explicit that when trustee officials use a 
type A procedure in compliance with the Department's regulations, a PRP 
challenge is restricted to the trustee officials' decision to use a 
type A procedure and the accuracy of any incident-specific data used by 
the trustee officials to implement the type A procedure. This proposed 
clarification would apply to all type A procedures, not just the 
proposed NRDAM/GLE. Also, Federal and State trustee officials who have 
complied with the Department's regulations obtain a rebuttable 
presumption of correctness for their decision to use the type A 
procedure and for their incident-specific data.
    For example, once the NRDAM/GLE is promulgated as a final rule, a 
PRP in a natural resource damage case where the NRDAM/GLE is used in 
accordance with the Department's regulations will not be able to 
challenge the NRDAM/GLE submodels or databases. A PRP will only be 
allowed to challenge the trustee officials' decision to use the NRDAM/
GLE and the trustee officials' incident-specific data inputs to the 
NRDAM/GLE. Federal and State trustee officials who comply with the 
standards governing use of the NRDAM/GLE, as well as the Preassessment 
Phase, Assessment Plan Phase, and Post-Assessment Phase procedures set 
forth in the regulations, will obtain a rebuttable presumption of 
correctness for their decision to use the NRDAM/GLE and for their 
incident-specific data inputs. PRPs who wish to avoid being bound by 
the NRDAM/GLE submodels and databases have the option of funding the 
performance of type B procedures.

IV. NRDAM/GLE

A. Overview

    The proposed NRDAM/GLE consists of integrated submodels and 
databases that calculate natural resource damages based on appropriate 
estimated restoration costs and economic values lost to the public 
pending completion of restoration. The proposed NRDAM/GLE is a complex 
program that represents state-of-the-art computer modelling; however, 
it is designed for use by relatively untrained individuals. The 
proposed NRDAM/GLE is available on diskettes and can be used on most 
IBM-compatible personal computers.
    The proposed NRDAM/GLE was developed under contract to the 
Department by Applied Science Associates, Inc., Narragansett, Rhode 
Island, and HBRS, Inc., Madison, Wisconsin. Intensive efforts were made 
to ensure that the NRDAM/GLE incorporated the best available scientific 
and economic data and studies. The data and studies that were obtained 
were then carefully reviewed by a wide range of experts.
    A detailed description of the proposed NRDAM/GLE can be found in 
the four-volume ``CERCLA Type A Natural Resource Damage Assessment 
Model for Great Lakes Environments Technical Documentation,'' dated 
August 1994, prepared for the Department by Applied Science Associates, 
Inc., and HBRS, Inc. (NRDAM/GLE technical document). Volume I of the 
NRDAM/GLE technical document discusses the content and derivation of 
the NRDAM/GLE submodels and databases. Volume II is a user's manual. 
Volume III is a compilation of all the database tables used by the 
proposed NRDAM/GLE and discussed in Volume I. Volume IV is a listing of 
the active source code for the proposed NRDAM/GLE. Under the proposed 
rule, the NRDAM/GLE and the NRDAM/GLE technical document would be 
incorporated by reference in the regulations.
    Computer diskettes containing the proposed NRDAM/GLE and the NRDAM/
GLE technical document can be obtained for review and comment from the 
address given at the beginning of this notice. The Department solicits 
comment on all aspects of the proposed NRDAM/GLE, the proposed NRDAM/
GLE technical document, and the proposed rule language concerning use 
of the NRDAM/GLE.
    The proposed NRDAM/GLE is supplied with a menu-driven graphic 
display to assist users. Users can execute the proposed NRDAM/GLE with 
or without the graphic display. The proposed NRDAM/GLE is available on 
3.5 inch diskettes. The minimum computer configuration required to use 
the proposed NRDAM/GLE is:
     IBM-compatible personal computer using MS-
DOS 3.1 or higher;
     80286 processor or better with math co-processor;
     1.4 megabyte 3.5 inch floppy disk drive;
     640 kilobytes of RAM with 540 kilobytes available; and
     Hard disk with 30 megabytes of available space.

Also, a VGA color monitor and Microsoft-compatible mouse are 
needed to use the graphic display.
    For further information on installation of the proposed NRDAM/GLE, 
see the NRDAM/GLE technical document, Volume II, Section 2.
    The Department has endeavored to assure that the proposed NRDAM/GLE 
is without software coding errors. Although extensive testing and 
validation efforts have been performed to date, the Department is 
continuing with additional efforts. The Department anticipates that 
reviewers may discover coding errors in either the user interface or 
the model's active code. Reviewers may also identify certain aspects of 
individual output computations that they consider atypical. In all 
instances, the Department requests to be informed of the technical 
circumstances that led to the error or perceived atypical output. In 
order for the Department to replicate the technical circumstances, the 
specific user inputs must be provided by the reviewer along with a 
brief statement describing the error or atypical output. Provision of 
such technical information need not await formal submission of public 
comment on the overall rulemaking.
    To facilitate reviewers' technical submissions, the Department 
notes that the proposed NRDAM/GLE creates a series of individual 
internal files for each scenario that is developed. The Department 
encourages reviewers to electronically submit the pertinent files to 
the contact listed at the front of this notice. The user inputs to the 
NRDAM/GLE may be found in the directories:

/NRDAMGLE/DATA/MODELOUT/*.SCN  (ASCII file)
/NRDAMGLE/DATA/MODELOUT/*.CLS  (ASCII file)
/NRDAMGLE/DATA/WIND/*.WND  (ASCII file).

B. User-Supplied Data Inputs

    Most of the data used by the proposed NRDAM/GLE to determine and 
quantify injury and calculate damages are included in the NRDAM/GLE 
databases. However, the proposed rule would require trustee officials 
to provide two categories of incident-specific data inputs to the 
proposed NRDAM/GLE. One category of data inputs would include 
information that trustee officials would be required to provide in 
order to use the proposed NRDAM/GLE. The other category would include 
additional information that trustee officials would be allowed to 
provide under certain circumstances.
1. Required User-Supplied Data Inputs
    The Department is proposing to require trustee officials to supply 
the following incident-specific data:
     Identity of the discharged oil or released hazardous 
substance;
     Amount of the discharged oil or released hazardous 
substance that entered a Great Lakes environment;
     Length of time over which the discharged oil or released 
hazardous substance entered a Great Lakes environment;
     Date and time that the discharged oil or released 
hazardous substance began to enter a Great Lakes environment;
     Latitude and longitude where the discharged oil or 
released hazardous substance entered a Great Lakes environment;
     Wind velocity and direction during the 30-day period 
starting 24 hours before the discharged oil or released hazardous 
substance entered a Great Lakes environment;
     Percentage of the discharged oil or released hazardous 
substance that was removed during response actions and the timing of 
the removal;
     Closures of boating areas, Federal public beaches, State 
public beaches, fisheries, mammal hunting or trapping areas, and 
waterfowl hunting areas due to the discharge or release; and
     Gross National Product Implicit Price Deflator for the 
quarter in which the discharge or release occurred.
    The Department is also proposing to require trustee officials to 
determine whether the proposed NRDAM/GLE should consider the effects of 
ice cover. If trustee officials determine that ice cover effects should 
be considered, the proposed NRDAM/GLE supplies data on average ice 
cover for the relevant time period. The Department solicits comment on 
whether the NRDAM/GLE should always consider the effects of ice cover.
    Trustee officials may have direct knowledge of some of the required 
incident-specific data inputs. Additional information may be available 
from the On-Scene Coordinator (OSC), who is responsible for managing 
response actions following a discharge of oil or release of a hazardous 
substance. The U.S. Coast Guard will normally be the OSC for discharges 
and releases in Great Lakes environments.
    Hazardous substances are identified by Chemical Abstract Service 
(CAS) Registry Number. The CAS number and the chemical, physical, and 
toxicological properties associated with each of the oils and hazardous 
substances contained in the NRDAM/GLE database are listed the NRDAM/GLE 
technical document, Volume III, Table III.2.1. Oils are categorized as 
specified in the NRDAM/GLE technical document, Volume III, Table 
III.2.4. If a mixture has been discharged or released, trustee 
officials must select one oil or one hazardous substance in the mixture 
and use the NRDAM/GLE based on the quantity of the selected oil or 
hazardous substance contained in the mixture.
    Information on wind conditions may be available from local sources 
or from the National Climatic Data Center, Asheville, NC, (704) 271-
4800.
    The Gross National Product Implicit Price Deflator is available 
from the U.S. Department of Commerce/Bureau of Economic Analysis in the 
Survey of Current Business, Washington, D.C., (202) 606-9900. The 
Department solicits comment on whether the rule should require trustee 
officials to supply the Gross Domestic Product Implicit Price Deflator 
instead of the Gross National Product Implicit Price Deflator. The 
Gross Domestic Product Implicit Price Deflator is also available from 
the U.S. Department of Commerce/Bureau of Economic Analysis.
    Under the proposed rule, trustee officials would document in the 
Assessment Plan the required incident- specific information they intend 
to use as data inputs to the NRDAM/GLE and the form in which they 
intend to enter the information into the NRDAM/GLE.
    For further information on the proposed required incident-specific 
data inputs, see the NRDAM/GLE technical document, Volume II, Sections 
4.1 and 5.1.
2. Additional User-Supplied Data Inputs
    In addition to the proposed required incident-specific data inputs, 
the Department is proposing to allow trustee officials to supply 
additional incident-specific data inputs under certain circumstances. 
Under the proposed rule, trustee officials could supply the following 
data inputs if they estimate that conditions at the point where the 
discharged oil or released hazardous substance entered a Great Lakes 
environment differed significantly from the typical values for that 
season, as built into the proposed NRDAM/GLE, and if the data can be 
collected consistent with the requirements of reasonable cost and cost 
effectiveness:
     Water temperature when the discharged oil or released 
hazardous substance entered a Great Lakes environment;
     Total suspended sediment concentration when the discharged 
oil or released hazardous substance entered a Great Lakes environment;
     Mean settling velocity of suspended solids when the 
discharged oil or released hazardous substance entered a Great Lakes 
environment; and
     Air temperature when the discharged oil or released 
hazardous substance entered a Great Lakes environment.
    Under the proposed rule, if trustee officials decided to develop 
incident-specific values for these parameters, they would be required 
to document their decision in the Assessment Plan. If trustee officials 
do not supply incident-specific values, the proposed NRDAM/GLE supplies 
default values.
    For further information on the proposed additional incident-
specific data inputs, see the NRDAM/GLE technical document, Volume II, 
Sections 4.1 and 5.1.

C. Geographic Information System

    The proposed NRDAM/GLE is supported by a geographic information 
system (GIS) that supplies geographically distributed information to 
the submodels. The submodels divide space into series of rectangular 
grids. Each grid contains 2,500 cells. The size of the overall grid 
and, therefore, the interior cells, varies based on the physical 
geometry and the availability of natural resource information within 
each area. For example, smaller grids are used for nearshore areas than 
are used for offshore areas. Once a submodel selects a grid, the GIS 
draws the necessary environmental and biotic data from the appropriate 
databases. Conditions are assumed uniform throughout a particular grid 
cell.
    For further information about the proposed GIS and grid system, see 
the NRDAM/GLE technical document, Volume I, Section 3.14.

D. Submodels

    The proposed NRDAM/GLE includes five submodels: the Hydrodynamics 
Submodel, the Physical Fates Submodel, the Biological Effects Submodel, 
the Restoration Submodel, and the Compensable Value Submodel. Under the 
proposed rule, these submodels would use data from the NRDAM/GLE 
databases and the incident-specific data inputs supplied by trustee 
officials to perform Injury Determination, Quantification, and Damage 
Determination.
1. Hydrodynamic Submodel
    The proposed Hydrodynamic Submodel simulates wind-driven currents 
in Great Lakes environments. The proposed Submodel creates a time 
series of currents using the incident-specific data on wind conditions 
supplied by trustee officials and data from the Climatological 
Database. The time series is used by the Physical Fates Submodel.
    For further information on the proposed Hydrodynamic Submodel, see 
the NRDAM/GLE technical document, Volume I, Section 2.
2. Physical Fates Submodel
    The proposed Physical Fates Submodel estimates the distribution of 
the discharged oil or released hazardous substance on the water 
surface, along shorelines, in the water column, and in sediments over 
time. The proposed Submodel uses an array of particles to represent the 
discharged oil or released hazardous substance. A variable fraction of 
the contaminant mass is associated with each particle. The distribution 
of the particles is tracked in both time and space as they move across 
a gridded environment.
    Under the proposed rule, the Physical Fates Submodel simulates: 
Spreading of surface slicks; evaporation from surface slicks; beaching; 
entrainment and dissolution in the water column; volatilization from 
the surface and water column; degradation; removal as a result of 
response activities; adsorption onto and desorption from particulate 
matter in the water column; deposition from the water column to bottom 
sediments; dissolution from sediments to the water column; and removal 
from the shoreline to the water column or surface. When simulating 
these processes, the proposed Submodel draws specific data about the 
physical and chemical properties of the discharged oil or released 
hazardous substance from the Chemical and Toxicological Database.
    The proposed Submodel continues the simulations until all 
environmental exposure levels are below acute toxicity thresholds. The 
proposed Chemical and Toxicological Database includes acute toxicity 
thresholds for each oil and hazardous substance covered by the proposed 
NRDAM/GLE. The proposed Submodel creates a file of surface slick 
coverage, shoreline coverage, and substance concentration levels in the 
water column and in bottom sediments. This file is used by the proposed 
Biological Effects Submodel.
    For further information on the proposed Physical Fates Submodel, 
see the NRDAM/GLE technical document, Volume I, Section 3. For further 
information on the proposed Chemical and Toxicological Database, see 
the NRDAM/GLE technical document, Volume I, Section 7; and Volume III, 
Section 2.
3. Biological Effects Submodel
    The proposed Biological Effects Submodel determines whether certain 
types of natural resource injuries have resulted from the discharge or 
release and, if so, quantifies those injuries. The proposed Biological 
Effects Submodel determines and quantifies the following types of 
injury: (1) Direct mortality resulting from short-term exposure to the 
discharged oil or released hazardous substance; (2) direct loss of 
production resulting from short-term exposure to the discharged oil or 
released hazardous substance; (3) indirect mortality resulting from 
food web losses; and (4) indirect loss of production resulting from 
food web losses.
    The proposed Biological Effects Submodel determines direct 
mortality of fish and wildlife and direct loss of production for plants 
and invertebrates by calculating exposure of different species to the 
discharged oil or released hazardous substance. When performing these 
calculations, the proposed Biological Effects Submodel uses the data 
generated by the Physical Fates Submodel concerning the distribution 
and concentration of the discharged oil or released hazardous 
substance.
    The proposed Biological Effects Submodel determines direct 
mortality of fish through use of an array of particles to represent 
fish populations potentially exposed to the discharge or release. Each 
particle represents a variable number of fish present at the time of 
the discharge or release. Each contiguous grouping of grid cells of the 
same habitat type represents a separate ecosystem. The particles move 
at random within an ecosystem during a single season. Each time a 
particle enters an area with dissolved water or sediment concentrations 
above an acute toxicity threshold, the proposed Submodel calculates the 
percentage mortality of the fish represented by the particle. These 
calculations continue until concentrations of the discharged oil or 
released hazardous substance have fallen below acute toxicity 
thresholds.
    The proposed Biological Effects Submodel uses similar calculation 
procedures to determine direct mortality of birds and mammals. However, 
under the proposed rule, the Submodel only determines direct mortality 
of birds and mammals when the discharged oil or released hazardous 
substance forms a surface slick.
    The proposed Biological Effects Submodel determines direct 
mortality of fish eggs and larvae through use of particle arrays that 
move with the currents. For plants and invertebrates, the proposed 
Submodel determines direct loss of production based on the assumption 
that such biota are uniformly distributed throughout a particular 
ecosystem rather than through use of particle arrays.
    Once direct mortality and direct loss of production have been 
determined, the proposed Biological Effects Submodel determines 
indirect mortality and indirect loss of production for fish and 
wildlife resulting from reductions in food resources. The proposed 
Submodel uses a food web model to determine the effect that direct 
mortality and direct loss of production of plants, invertebrates, and 
noncommercial fish and mammals have on higher trophic-level fish and 
wildlife.
    After determining injuries from both direct exposure and food web 
losses, the proposed Biological Effects Submodel quantifies those 
injuries both in terms of lost populations over time and, in the case 
of fish and wildlife, fishing and hunting losses. The proposed Submodel 
also computes fishing and hunting losses resulting from closures of 
fisheries, waterfowl hunting areas, and mammal hunting or trapping 
areas, as specified by trustee officials. This information is used by 
the Compensable Value Submodel.
    Data on habitat type and species biomass are supplied to the 
proposed Biological Effects Submodel by the Biological Database. 
Commenters with additional data on Great Lakes habitats and species 
biomass are encouraged to provide the data to the Department.
    For further information on the proposed Biological Effects 
Submodel, see the NRDAM/GLE technical document, Volume I, Section 4. 
For further information on the proposed Biological Database, see the 
NRDAM/GLE technical document, Volume I, Section 8; and Volume III, 
Section 3.
4. Restoration Submodel
    The proposed Restoration Submodel estimates the cost of restoring 
the injured resources. Under the proposed rule, the Submodel determines 
if various restoration actions are warranted and, if so, calculates the 
cost of those actions.
    The first type of restoration action evaluated by the proposed 
Restoration Submodel is habitat restoration. For each affected habitat, 
the proposed Submodel evaluates whether a particular restoration action 
is warranted. When shallow water sediments or sediments in connecting 
channels are affected, the proposed Submodel evaluates dredging of 
sediments and refilling with clean material. When deep water sediments 
are affected, the proposed Submodel evaluates capping of the sediment. 
When wetlands are affected, the proposed Submodel evaluates removal of 
the contaminated substrate, replacement with clean material, and 
replanting. When shorelines are affected, the proposed Submodel 
evaluates washing of sand and gravel, replacement of mud, and cleaning 
of rocks and artificial structures.
    For each relevant habitat restoration action, the proposed 
Restoration Submodel compares the total injury that would result if the 
action were performed with the total injury that would result if the 
action were not performed and natural recovery were relied upon 
instead. Injury is quantified in terms of lost public use of injured 
resources (i.e. compensable value) within the relevant habitat. Data on 
compensable values are supplied to the Restoration Submodel by the 
Compensable Value Submodel.
    Under the proposed rule, if the relevant habitat restoration action 
would result in a lower measure of total injury than reliance upon 
natural recovery, then the Restoration Submodel assumes that the 
habitat restoration action will be performed. The proposed Restoration 
Submodel then computes the cost of the habitat restoration action. Cost 
data are supplied by the Restoration Cost Database.
    If the relevant habitat restoration action would not result in a 
lower measure of total injury than reliance upon natural recovery, then 
the proposed Restoration Submodel does not compute any habitat 
restoration costs. Instead, the proposed Submodel computes the cost of 
restoring the assimilative capacity of Great Lakes environments to 
baseline.
    Assimilative capacity is the ability of a natural resource, such as 
water, to absorb pollutants. When using type B procedures, trustee 
officials are allowed to consider lost assimilative capacity when 
determining the necessary level of restoration, rehabilitation, 
replacement, and/or acquisition of equivalent resources. See 51 FR 
27687, 27716 (August 1, 1986); 59 FR 14273 (March 25, 1994). The 
proposed Restoration Submodel calculates damages associated with 
restoring baseline assimilative capacity of Great Lakes environments in 
cases where habitat restoration action is not warranted.
    When habitat restoration actions are not warranted, the proposed 
NRDAM/GLE computes the time it will take until environmental exposure 
levels are below acute toxicity thresholds. However, some non-acutely 
toxic chemical mass will remain dispersed in the Great Lakes 
environments. The continued presence of this chemical mass reduces the 
overall assimilative capacity of Great Lakes environments. It is not 
technically feasible to directly remove the remaining dispersed 
chemical mass. Therefore, the proposed Restoration Submodel assumes 
that a contaminant mass with toxicity equivalent to the remaining 
dispersed mass of the discharged oil or released hazardous substance 
will be removed elsewhere from the Great Lakes environments. 
Specifically, the proposed Submodel assumes that an equivalent mass of 
contaminated sediment will be removed from one of 42 harbors, river 
mouths, or connecting channels in the Great Lakes that have been 
designated as areas of concern by the International Joint Commission. 
The proposed Restoration Submodel then computes the cost of removing 
the contaminated sediment. Cost data are provided by the Restoration 
Cost Database.
    The Department solicits comment on whether alternative methods of 
restoring lost assimilative capacity, such as controlling discharges 
from publicly owned treatment works or other point sources, would be 
more cost effective than the removal of contaminated sediment from the 
areas of concern. The Department further solicits comment on whether 
there are sufficient technical data concerning such methods to allow 
for their incorporation into the NRDAM/GLE.
    The proposed Restoration Submodel also computes the cost of 
restocking fish and wildlife. The proposed Submodel assumes that once 
the habitat has recovered, either through natural recovery or through 
implementation of a habitat restoration action, injured fish and 
wildlife species will be restocked if stocks are available. Data on the 
availability and cost of stocks are provided by the Restoration Cost 
Database.
    Under the proposed rule, the Restoration Submodel sums the costs of 
habitat restoration, assimilative capacity restoration, and restocking, 
as relevant, to calculate the total restoration cost. This figure is 
added to the compensable value figure computed by the Compensable Value 
Submodel to form the total damage claim.
    For further information on the proposed Restoration Submodel, see 
the NRDAM/GLE technical document, Volume I, Section 5. For further 
information on the proposed Restoration Cost Database, see the NRDAM/
GLE technical document, Volume I, Section 9; and Volume III, Section 5.
5. Compensable Value Submodel
    The proposed Compensable Value Submodel calculates compensable 
value. Compensable value, as computed by the proposed Submodel, is the 
sum of certain economic values lost to the public pending completion of 
either natural recovery or appropriate restoration actions, as 
determined by the Restoration Submodel. Only public losses are included 
in compensable value.
    The proposed Compensable Value Submodel computes two types of 
compensable values: (1) Lost consumptive use values; and (2) lost 
nonconsumptive use values. Consumptive use values are derived from 
harvesting activities, such as fishing or hunting, that remove a 
natural resource from the environment. Nonconsumptive use values are 
derived from activities, such as birdwatching or beach visitation, that 
do not remove any resources from the environment.
    Under the proposed rule, the Compensable Value Submodel does not 
estimate lost nonuse values. Nonuse values are those values that are 
not dependent on use of the resource, such as the value of knowing that 
a resource exists. Virtually no empirical studies have been found that 
address nonuse values for resources in Great Lakes environments or that 
are in a form that can be used in the NRDAM/GLE, i.e. that allow the 
calculation of marginal values appropriate for relatively small losses 
in the stock of natural resources.
    Under the proposed rule, lost consumptive use values are calculated 
for lost harvests of: (1) Certain commercially exploited fish species; 
(2) certain commercially exploited furbearer species; (3) certain 
recreationally harvested fish species; and (4) certain recreationally 
harvested waterfowl species.
    The compensable value for lost harvests of commercially exploited 
fish and furbearers is the reduction in the in- situ value of the 
species as a result of the lost harvests. Under the proposed rule, the 
Compensable Value Submodel assumes that: (1) The marginal productivity 
of harvest effort recovers completely; (2) the level of harvest effort 
remains unchanged; and (3) markets for the harvested resources are 
sufficiently competitive and losses are sufficiently small such that 
resource prices are not affected. The proposed Compensable Value 
Submodel computes the reduction in the in-situ value of commercially 
exploited fish and furbearers by multiplying the total lost harvest of 
such species, as computed by the Biological Effects Submodel, by the 
commercial price per unit of harvest, as supplied by the Compensable 
Value Database.
    The compensable value for lost harvests of recreationally harvested 
fish and waterfowl is the reduction in the associated value of 
recreational fishing and hunting trips. Under the proposed rule, the 
Compensable Value Submodel assumes that: (1) The marginal yield of 
recreational effort recovers completely; and (2) the level and 
geographic distribution of recreational effort remain unchanged. The 
proposed Compensable Value Submodel computes the reduction in value of 
recreational fishing and hunting trips by multiplying the total lost 
recreational harvest of fish and waterfowl species, as computed by the 
Biological Effects Submodel, by the marginal value of harvesting an 
additional fish or bird, as supplied by the Compensable Value Database.
    Under the proposed rule, lost nonconsumptive use values are 
calculated for lost beach visitation, boating, and wildlife viewing. 
The proposed Compensable Value Submodel computes compensable value for 
lost beach visitation and boating only if trustee officials specify 
that there has been a closure of a beach or a boating area. If a 
closure is specified, the proposed Compensable Value Submodel 
calculates compensable value by multiplying the geographical area 
closed per day and the number of days closed, as supplied by trustee 
officials, by the per day value of trips to the closed area. Data on 
the per unit value of lost nonconsumptive uses are supplied by the 
Compensable Value Database.
    The proposed Compensable Value Submodel calculates compensable 
value for lost wildlife viewing only for trips originating within the 
immediate area. The proposed Compensable Value Submodel first estimates 
the number of recreational trips affected by the discharge or release, 
and then estimates a per animal nonconsumptive use value. In cases 
where there have been significant wildlife viewing losses for trips 
originating outside the immediate area, trustee officials could use 
type B procedures to estimate such losses and use the NRDAM/GLE to 
calculate other damages. Due to a lack of empirical data, the proposed 
Compensable Value Submodel does not estimate compensable value for lost 
recreational opportunities occurring in other locations due to lost 
migration of the affected wildlife population.
    The estimated per animal nonconsumptive use value varies with the 
size of the affected wildlife population and the estimated number of 
affected recreational trips. These estimated values are derived by 
disaggregating average nonconsumptive use values by species and species 
population. The proposed Compensable Value Submodel estimates a 
relatively low per animal nonconsumptive use value for species that are 
abundant and areas that have few affected recreational trips. 
Alternatively, the proposed Compensable Value Submodel estimates a 
higher per animal nonconsumptive use value for species that are less 
abundant and areas that have more affected recreational trips. A 
detailed explanation of this methodology is provided in the NRDAM/GLE 
technical document, Volume I, Section 6.4.1. The specific per animal 
nonconsumptive use values incorporated in the proposed NRDAM/GLE are 
listed in the NRDAM/GLE technical document, Volume III, Tables III.4.2 
through III.4.6.
    The Department solicits comments on the reliability of the proposed 
methodology for computing compensable value for lost wildlife viewing. 
The Department also solicits comment on ways of improving the 
reliability of the proposed methodology. Specifically, comments are 
solicited relating to the applicability of this methodology to 
different types of wildlife (e.g., mammals, birds, and reptiles) and 
different locations. Comments are solicited regarding the use of 
disaggregated average nonconsumptive use values to represent the 
marginal contribution by one wildlife individual to total 
nonconsumptive value. The Department also requests comment on whether 
extremely small and large values for a particular species should be 
excluded from the NRDAM/GLE and the criterion for doing so. Further, 
commenters with additional valuation data or alternative valuation 
methodologies concerning wildlife viewing in Great Lakes environments 
are encouraged to provide the data and methodologies to the Department.
    One alternative under consideration is the deletion of all 
nonconsumptive wildlife values from the NRDAM/GLE. Many species, such 
as bald eagles, have no consumptive use. Therefore, if nonconsumptive 
wildlife values were deleted from the NRDAM/GLE, then the compensable 
value figure calculated by the model would not reflect any lost 
economic values associated with such species. In order to obtain 
compensation for such lost values, trustee officials would have to 
conduct site-specific type B procedures. The Department solicits 
comment on whether reliance on type B procedures to capture lost 
nonconsumptive wildlife values would be feasible for minor discharges 
and releases in Great Lakes environments. Based on the comments 
received, the Department will decide whether to retain the proposed 
compensable values for lost wildlife viewing, modify those values, or 
delete them from the final version of the NRDAM/GLE.
    The proposed Compensable Value Submodel uses the Gross National 
Product Implicit Price Deflator, as supplied by trustee officials, to 
adjust per unit values to current dollars. As noted above, the 
Department solicits comment on whether the Compensable Value Submodel 
should use the Gross Domestic Product Implicit Price Deflator, rather 
than the Gross National Product Implicit Price Deflator.
    The proposed Compensable Value Submodel discounts the value of 
future consumptive and nonconsumptive losses using a seven percent 
discount rate, which is the discount rate for public investment 
specified in the current version of Office of Management and Budget 
Circular A-94 (OMB Circular A-94), dated October 29, 1992, which is 
available from the OMB Publications Office (202-395-7332). The 
Department is soliciting comment on whether use of a fixed seven 
percent discount rate (the value specified in Circular A-94) is 
appropriate or whether trustee officials should be allowed to specify a 
different discount rate. A possible alternative discount rate for 
future public losses of natural resources is the consumer rate of time 
preference, which is the rate of interest at which an individual would 
be indifferent between consuming goods now and postponing consumption 
to a later date. Interest rates on investments with little or no 
default risk, such as U.S. Treasury bonds, provide an estimate of the 
consumer rate of time preference. The Department solicits comment on 
whether trustee officials should be allowed to supply a discount rate 
based on the U.S. Treasury borrowing rate on marketable securities with 
maturities comparable to the period over which future consumptive and 
nonconsumptive losses will occur. Information on U.S. Treasury 
borrowing rates on marketable securities is provided in Appendix C of 
OMB Circular A-94. 
    If the U.S. Treasury borrowing rate on marketable securities is 
used as the discount rate, the Department solicits comment on whether 
trustee officials should be allowed to determine the appropriate 
maturity or whether the rule should establish a single maturity that 
must be used for all cases. For example, because the proposed NRDAM/GLE 
is designed for minor discharges and releases, it might be reasonable 
to assume that consumptive and nonconsumptive losses will not extend 
more than three years into the future. Therefore, trustee officials 
could be required to use as a discount rate the U.S. Treasury borrowing 
rate on marketable securities with three-year maturities. 
    After the Gross National Product Implicit Price Deflator and the 
discount rate have been applied, the proposed Compensable Value 
Submodel sums all lost consumptive values and all lost nonconsumptive 
values to calculate the total compensable value. This figure is added 
to the restoration costs computed by the Restoration Submodel for a 
damage figure. 
    For further information on the proposed Compensable Value Submodel, 
see the NRDAM/GLE technical document, Volume I, Section 6. For further 
information on the proposed Compensable Value Database, see the NRDAM/
GLE technical document, Volume I, Section 6; and Volume III, Section 4. 

V. Conditions Regarding Use of the NRDAM/GLE
    The proposed rule provides several conditions regarding use of the 
NRDAM/GLE. Under the proposed rule, if the discharged oil or released 
hazardous substance entered a Great Lakes environment, trustee 
officials would be required to determine if the conditions regarding 
use of the NRDAM/GLE were met. The conditions regarding use of the 
NRDAM/GLE fall into two categories primary conditions and secondary 
conditions. 
    If all of the conditions, both primary and secondary, were met, 
trustee officials would be required to use the NRDAM/GLE to calculate 
all damages in order to get the rebuttable presumption. If trustee 
officials determined that one or more primary conditions were not met, 
they would be required to use type B procedures to calculate all 
damages in order to obtain the rebuttable presumption. If trustee 
officials determined that all primary conditions were met but one or 
more secondary conditions were not met, they could use the NRDAM/GLE, 
type B procedures, or a combination, and obtain a rebuttable 
presumption. Trustee officials would decide which assessment procedures 
to use based on considerations of ``cost effectiveness'' and 
``reasonable cost,'' as those terms are defined in 43 CFR Sec. 11.14. 
The proposed conditions are discussed below.

A. Primary Conditions

1. Oil Discharged or Hazardous Substance Released
    In order to use the proposed NRDAM/GLE, trustee officials must 
select one of the oils or hazardous substances included in the Chemical 
Database. The Chemical Database includes 469 oils and hazardous 
substances. Oils are categorized in the NRDAM/GLE technical document, 
Volume III, Table III.2.4. The proposed rule allows trustee officials 
to use the NRDAM/GLE so long as the discharged oil fits into one of the 
listed categories. However, for hazardous substances, the proposed rule 
currently provides that unless the released substance is specifically 
listed in the NRDAM/GLE technical document, Volume III, Table III.2.1, 
trustee officials may not use the NRDAM/GLE. The Department solicits 
comment on whether use of a proxy hazardous substance should be 
allowed, as is proposed for oil. The Department further solicits 
comment on how appropriate proxies for hazardous substances might be 
selected.
2. Magnitude of Discharge or Release
    The proposed NRDAM/GLE is designed to calculate damages resulting 
from minor discharges or releases. The proposed NRDAM/GLE uses discrete 
particles to represent and track the distribution of a discharged oil 
or a released hazardous substance on the water surface and in the water 
column. There are a limited number of particles available for 
computations. Long-term or large discharges or releases that result in 
widespread distributions of discharged oil or released hazardous 
substances are beyond the capacity of the proposed NRDAM/GLE.
    Also, the proposed NRDAM/GLE assumes that injuries to biological 
resources are small enough that the ecosystem structure is not 
significantly changed. For example, the proposed NRDAM/GLE does not 
address changes in predator-prey relationships or reproductive rates. 
Moreover, the proposed NRDAM/GLE assumes that injuries to resources 
that are used by humans are small enough that the marginal values of 
those resources are not significantly affected. For example, the 
proposed NRDAM/GLE assumes that the price of commercial harvest does 
not change as a result of the discharge or release.
    Therefore, if there has been a major discharge or release, type B 
procedures should be used. The effect of a discharge or release will 
depend on not only the quantity of oil or hazardous substance 
discharged or released but also the characteristics of the discharged 
oil or released hazardous substance and the nature of the area in which 
the discharge or release occurred. For example, the discharge of a very 
large quantity of oil, under certain circumstances, could constitute a 
``minor'' discharge for purposes of using the NRDAM/GLE. On the other 
hand, the release of a very small quantity of a highly toxic substance, 
under certain circumstances, could warrant the use of type B procedures 
instead of the NRDAM/GLE. Therefore, the Department has not proposed 
any ``bright line'' standard for what constitutes a minor discharge or 
release. Under the proposed rule, trustee officials would decide on a 
case-by-case basis whether a discharge or release was minor.
3. Proximity of Discharge or Release to Water Surface
    The proposed NRDAM/GLE does not model the fate of underwater 
discharges or releases. Therefore, if the discharged oil or released 
hazardous substance does not enter a Great Lakes environment at or near 
the water surface, type B procedures should be used.
4. Distribution of Biological Resources
    Any model is, by its nature, a simplification of real-world 
phenomena. The proposed NRDAM/GLE is built upon thousands of grid 
cells, each representing a discrete geographic area. Collectively these 
cells constitute the Great Lakes environments. To enable modelling of 
complex environmental variables and relationships, each of these cells 
is assigned an ``average'' for features such as habitat type and 
associated values such as biological abundance. These data are intended 
to be representative of the area covered by the cell. Individual grid 
cells are the most detailed level to which resource data are assigned.
    Several features of the proposed NRDAM/GLE are included to more 
accurately represent the natural environment. For example, different 
cell sizes have been used to account for varying conditions and levels 
of available natural resource information. Cell sizes in nearshore 
areas are generally much smaller than those in offshore areas. This 
enables the model to provide more detailed and accurate data for 
nearshore areas that exhibit greater complexity, variation, and 
abundance of biological resources. Similarly, data are included to vary 
biological abundance by season.
    Provision of spatial and temporal variation is limited, however, in 
that resources are uniformly distributed within cells and among 
contiguous cells with the same habitat designations, and biological 
abundance is assumed to be uniform and constant within a season. This 
may not always constitute an adequate representation of the affected 
environment. Some small but important environments, such as 
biologically productive wetlands, might be beyond the level of spatial 
detail provided in the proposed NRDAM/GLE. Similarly, if a discharge or 
release is expected to affect a population with a short-term increase 
in density that is significantly different than the seasonal average, 
type B procedures should be used.
    The Department wants to ensure that the NRDAM/GLE reflects the most 
accurate information available and encourages resource management 
agencies to review the values associated with cells for which they have 
expert knowledge. If, within the existing framework of the NRDAM/GLE, 
data are available that more accurately represent environmental 
features such as highly productive biological areas, the Department 
solicits such data. Reviewers of the proposed NRDAM/GLE can identify 
grid cells and habitat designations through the graphic user interface. 
Reviewers may use the F5 function key on their computer keyboard to 
identify the latitude and longitude for specific grid cells displayed 
by the graphic user interface. Biological abundance figures contained 
in the proposed Biological Database are provided in the text output of 
a model application.
5. Nature of Currents
    The proposed NRDAM/GLE uses two-dimensional, vertically averaged 
values for currents in rivers and lakes. Three- dimensional effects, 
such as reverse flows at depth, vertical shear profiles, upwelling, and 
downwelling, are not considered. Therefore, if subsurface currents are 
expected to significantly affect the fate of the discharged oil or 
released hazardous substance and the subsurface currents are not 
reasonably uniform with depth, type B procedures should be used.

B. Secondary Conditions

1. Presence of Other Discharges or Releases
    The proposed NRDAM/GLE treats each discharge or release as a 
discrete incident. Therefore, if trustee officials are dealing with the 
cumulative effects of multiple discharges or releases, use of type B 
procedures instead of or in addition to use of the NRDAM/GLE may be 
warranted.
2. Effect of Response Actions
    Under the proposed rule, trustee officials would be required to 
supply information on the percentage of the discharged oil or released 
hazardous substance that was removed during response actions. The 
proposed NRDAM/GLE takes this information into consideration when 
determining injury. However, the proposed NRDAM/GLE does not consider 
any potential injury to natural resources caused by response actions, 
such as use of chemical dispersants. The existing regulations provide 
that natural resource damages include compensation for injuries caused 
by reasonably unavoidable response actions. 43 CFR 11.15(a)(1). 
Therefore, if response actions resulted in significant injury to 
natural resources, use of type B procedures instead of or in addition 
to use of the NRDAM/GLE may be warranted.
3. Types of Natural Resources Injured
    The proposed NRDAM/GLE performs Injury Determination only for 
biological resources. Therefore, if there have been significant 
injuries to surface water, groundwater, air, or geologic resources, use 
of type B procedures instead of or in addition to use of the NRDAM/GLE 
may be warranted.
4. Pathway of Contamination
    The proposed NRDAM/GLE calculates exposure of biological resources 
to the discharged oil or released hazardous substance only through 
surface water pathways. Therefore, if there has been significant 
exposure of biological resources through air, groundwater, biological, 
or geologic pathways, use of type B procedures instead of or in 
addition to use of the NRDAM/GLE may be warranted.
5. Type of Biological Injuries
    The proposed NRDAM/GLE determines and quantifies the following 
injuries to biological resources: (1) Direct mortality resulting from 
short-term exposure to the discharged oil or released hazardous 
substance; (2) Direct loss of production resulting from short-term 
exposure to the discharged oil or released hazardous substance; (3) 
Indirect mortality resulting from food web losses; and (4) Indirect 
loss of production resulting from food web losses. Therefore, if there 
have been other significant injuries to biological resources, use of 
type B procedures instead of or in addition to use of the NRDAM/GLE may 
be warranted.
6. Nature of Compensable Values
    The proposed NRDAM/GLE calculates compensable values for: (1) Lost 
harvests of commercially exploited fish species; (2) Lost harvests of 
commercially exploited furbearer species; (3) Lost harvests of 
recreationally harvested fish species; (4) Lost harvests of 
recreationally harvested waterfowl species; (5) Lost wildlife viewing 
for trips originating within the immediate area; (6) Lost beach 
visitation due to closure; and (7) Lost boating due to closure. 
Therefore, if the public has lost other significant economic values as 
a result of the discharge or release, use of type B procedures instead 
of or in addition to use of the NRDAM/GLE may be warranted.

VI. Response to Comments

    The Department received several comments in response to its 
previous advance notices of proposed rulemaking. All of the comments 
received were supportive of the efforts to develop a damage assessment 
model for Great Lakes environments. The Department appreciates the time 
and effort expended by the commenters.
    Comment: Many of the commenters offered suggestions for model 
development and provided or cited reference material for use in the 
construction of the model and/or its databases.
    Response: The materials provided and cited by the commenters were 
reviewed and, where appropriate, combined with the materials located by 
the Department's contractors through extensive literature searches. In 
some instances the materials provided formed the basis for model 
assumptions and algorithms.
    Comment: Several commenters requested that the NRDAM/GLE calculate 
the full costs of restoring injured natural resources.
    Response: In response to comments received and consistent with Ohio 
v. Interior and Colorado v. Interior, the proposed NRDAM/GLE has been 
developed to include consideration of restoration costs in the 
calculation of the damage amount.See Section IV.D.4 of this preamble, 
and the NRDAM/GLE technical document, Volume I, Section 5.
    Comment: Several commenters requested that the NRDAM/GLE address 
specific types of discharges or releases or specific natural resource 
effects or values. For example, commenters requested consideration of 
multiple long-term discharges and releases, low-level chronic effects, 
cultural or spiritual values, values of resources for subsistence and 
medicinal uses, water use values for drinking, cooling, and industrial 
purposes, and nonuse values.
    Response: Section 301(c) of CERCLA specifically requires the 
development of type A procedures for the performance of simplified 
assessments using minimal field observations.This statutory requirement 
necessitates an approach limited in scope. Due to modelling 
constraints, the proposed NRDAM/GLE is limited in application to use in 
cases resulting from single, short-term discharges or releases,and 
calculates damages resulting only from mortality biological resources 
due to short-term exposure and food web losses and certain use-related 
losses. While the proposed NRDAM/GLE uses state-of-the-art procedures 
for a model designed for use on readily available personal computers, 
it is intended for use in determining the consequences of minor 
discharges and releases.
    Consideration of additional types of discharges and releases, 
injuries, and compensable values is beyond the intended use of the 
proposed NRDAM/GLE. The decisions on resources and values to be 
included in the proposed NRDAM/GLE were made based on the availability 
of data in a form that could be used in the model and produce reliable 
results. During future biennial reviews, as more data become available, 
the Department may consider the inclusion of additional resources and 
values. Meanwhile, as noted in the preamble discussion and regulatory 
language for the conditions regarding use of the NRDAM/GLE, discharges 
or releases that affect resources or values that are not adequately 
reflected in the proposed NRDAM/GLE should be addressed through the 
application of type B procedures.
    Comment: One commenter suggested that the model should have a clear 
lower limit below which no damages are calculated and that the model 
should recognize the potential for natural recovery and the possibility 
of zero damages.
    Response: The Department notes that many minor discharges and 
releases will, and in fact do, result in zero ``damages'' (i.e. 
monetary recoveries) in that they are undetected,unreported, or not 
effectively measurable, or it simply is not cost effective to pursue 
for damages even with simplified procedures such as the NRDAM/GLE. 
However, the Department also notes that CERCLA does not identify a 
lower limit below which no damages occur nor suggest that such a limit 
exists.
    A natural resource damage assessment must generate a damage claim 
figure that is based upon the estimated injury to natural resources. 
The NRDAM/GLE damage figures are scaled to the level of injury that the 
model estimates to have occurred. Damages are commensurate with the 
size of the discharge or release as affected by other variables such as 
the characteristics of the oil or hazardous substance discharged or 
released, the duration of the discharge or release event, the 
prevailing weather conditions, and the nature of the affected 
environment. This can range from zero or near-zero damages for the 
smallest discharges and releases to millions of dollars for larger 
discharges or releases of highly toxic substances in more sensitive 
environments. As mandated by CERCLA, this reflects a compensatory 
rather than punitive framework.
    The proposed NRDAM/GLE does recognize the potential for natural 
recovery in the determination of appropriate restoration activities. As 
discussed in Section IV.D.4 of this preamble and in the NRDAM/GLE 
technical document,Volume I, Section 5, the anticipated rate of natural 
recovery has a direct bearing on the determination of a damage figure. 
However, natural recovery does not nullify the injury sustained by the 
environment nor absolve a responsible party of liability.
    Comment: One commenter noted that the type A procedures should 
require confirmation of injury. The commenter stated this was required 
under the type B procedures.
    Response: Unlike type B procedures, type A procedures are required 
by CERCLA to involve minimal field observation, in order to facilitate 
the damage assessment process and expedite the restoration of injured 
natural resources where feasible. Confirmation of specific injuries may 
require costly field studies, could delay restoration activities,and 
might not prove conclusive. When applicable, executing this type A 
procedure results in a reasonable estimation of damages based on the 
projected injury to natural resources.Confirmation of injury would not 
be cost effective for the minor discharges and releases that type A 
procedures are designed to address. Imposing such requirements on 
natural resource trustees defeats the purpose of developing and using 
type A procedures.
    Comment: One commenter called for the use of validation techniques, 
such as sensitivity studies, to ensure that the model is consistent 
with real-world observations.
    Response: The Department agrees that validation is an important 
factor in establishing the extent to which the NRDAM/GLE reflects 
``real-world'' events. To this end, sensitivity studies were conducted 
using a wide variety of spill scenarios. The studies systematically 
analyzed the proposed NRDAM/GLE's sensitivity to variations in spill 
size and season of spill for sinking substances and floating substances 
for both rivers and lakes. The results indicate that the proposed 
NRDAM/GLE behaves in a predictable manner with trends and variations 
realistically reflecting what would be anticipated in real-world 
situations.
    Unfortunately, the Department is not aware of any specific case 
studies in Great Lakes environments that provide sufficient detail to 
validate the results of a discrete NRDAM/GLE application including the 
results of the Physical Fates, Biological Effects, Restoration, and 
Compensable Value Submodels. However, the proposed NRDAM/GLE has been 
developed based on published literature and best available information 
widely used in other instances for purposes of resource management and 
regulatory and conservation programs. The application of this technical 
literature for modelling has been frequently carried out and is also 
published in the technical literature. The general modelling approach 
is considered to be technically sound. Further, the Department solicits 
information, such as case studies, that would be useful in the 
validation of the NRDAM/GLE.
    Comment: One commenter noted difficulties with the documentation 
for the NRDAM/CME, which was issued in 1987, and called for the NRDAM/
GLE to be as ``user friendly'' as possible.
    Response: The Department agrees with the comment and has made ease 
of use a primary objective in the development of the NRDAM/GLE. The 
proposed NRDAM/GLE is intended for use by individuals without a strong 
technical background in computer applications or simulation modelling. 
Although the proposed NRDAM/GLE can be used in text mode, a menu-driven 
graphic user interface has been provided to facilitate both the process 
for entering data and the analysis of results. Use of the NRDAM/GLE 
should prove more intuitive as technical details on the inner workings 
of the model and its databases become transparent at the user level. In 
addition to being simpler to use, better documentation has also been 
developed. Volume II of the NRDAM/GLE technical document includes a 
separate, short user's manual describing simple procedures for 
installing and using the model as well as a troubleshooting section for 
common questions. Thorough technical documentation is still available 
to examine the detailed components of the proposed NRDAM/GLE and its 
assumptions. The Department welcomes comments on specific problems or 
areas where the user interface and/or documentation is deemed 
deficient.
    Comment: One commenter questioned the selection of toxicity data 
used in the NRDAM/CME and called for consistency between the NRDAM/GLE 
and the water quality criteria established by the Environmental 
Protection Agency (EPA) under the CWA.
    Response: The Department's statutory mandate for the development of 
the NRDAM/GLE is fundamentally different than EPA's responsibility for 
development of water quality criteria. With an overriding goal of 
protection of human health and the environment, EPA's criteria are 
based on toxic concentrations which produce ``unacceptable effects.'' 
The proposed NRDAM/GLE, on the other hand, is intended to calculate 
damages commensurate with anticipated effects on biota of 
concentrations of lethal materials on natural resources as measured 
against baseline conditions, regardless of whether these conditions are 
above or below thresholds developed as part of EPA's water quality 
criteria (e.g., ``unacceptable effects'' on the environment). The 
mechanism developed for use in the proposed NRDAM/GLE allows for 
scaling across a full range of impacts up to total kills in an area. 
This is necessary in order to assign a dollar figure to whatever level 
of injury is estimated to occur. The technical documentation for the 
NRDAM/GLE articulates the specific criteria for the selection of 
toxicity values. For further information see the NRDAM/GLE technical 
document, Volume I, Section 4.2 and Section 7.9.
    Comment: A commenter requested that, although not addressed in the 
NRDAM/CME, the NRDAM/GLE should address the impact of the availability 
of substitute sites, in that the ability to go to another nearby like 
resource could reduce the value of the disrupted service flows 
resulting from a spatially-confined resource injury.
    Response: Since little information is available to evaluate 
marginal impacts of discharged oil and released hazardous substances on 
recreation, the proposed NRDAM/GLE calculates compensable values for 
lost recreational use only for cases where closures occur. This 
approach does assume that the recreational activity is eliminated 
rather than displaced, and the Department acknowledges that this could 
lead to an overestimation of damages for compensable values if 
displacement is actually occurring. On the other hand, the proposed 
NRDAM/GLE could underestimate such damages in cases where recreational 
quality is affected, but no closure occurs, or where displacement 
results in a diminished recreational experience through crowding or 
increased expense. The relative magnitude and balance of these effects 
would depend on the individual case. The inclusion of damages for 
closures without accounting for substitution is the proposed NRDAM/
GLE's mechanism for approximating the net effect of the discharge or 
release on all services provided by natural resources. For further 
information, see the NRDAM/GLE technical document, Volume I, Section 
6.1.
    Comment: One commenter recommended modifying the approach used in 
the NRDAM/CME to value recreational fishing using user-day values that 
vary according to the species being sought.
    Response: The proposed NRDAM/GLE, subject to the availability of 
data, uses individual values for each significant fish species included 
in the database. For more information, see the NRDAM/GLE technical 
document, Volume I, Section 6.3.1.
    Comment: One commenter urged selection of a discount rate 
significantly lower than ten percent, since sediments polluted by non-
water-soluble compounds have such a long recovery period that the 
discount rate becomes a key determinant of the damage estimate derived 
from effects of such contamination.
    Response: As noted in Section IV.D.5 of this preamble, the default 
discount rate included in the proposed NRDAM/GLE is seven percent. The 
Department is specifically soliciting comment on alternatives to 
mandatory use of this rate, including other specific rates or allowance 
of user-input of a discount rate specific to the circumstances of the 
incident.
    Comment: One commenter questioned the need for a Preassessment 
Phase in every case of application of a type A procedure, and the 
appropriateness of public input to processes in the Assessment Phase.
    Response: Revision of the overall administrative process for 
conducting an assessment, including the Preassessment Phase activities 
and the opportunities for public comment, is beyond the scope of this 
rulemaking. The Department will consider this comment during the 
upcoming biennial review of the administrative process and type B 
procedures.
    Comment: Several commenters stated that additional type A 
procedures should or are required to be developed for environments 
other than coastal and marine environments and Great Lakes 
environments. Such additional environments were characterized as 
riverine, lake and freshwater wetland environments, and inland 
environments. A commenter requested that type A procedures be developed 
for all environments for which such regulations are technically 
feasible.
    Response: The Department is evaluating development of additional 
type A procedures. The Department is considering several methodologies, 
including development of additional computer models, as well as other 
approaches, such as matrix, look-up table, compensation formula, and 
other simplified procedures. The Department intends to convene a public 
meeting no later than June 1, 1995, to discuss additional environments 
for which type A procedures may be feasible. Colorado v. Interior 
specifically upheld sequential development of type A procedures for 
various environments. 880 F.2d at 486-90.

Authorship

    The primary author of this rule is Mary C. Morton.
    Additional authors include James F. Bennett and Stephen F. 
Specht. David Rosenberger served as the contracting officer's 
technical representative (COTR) for the development of the NRDAM/
GLE.

National Environmental Policy Act, Regulatory Flexibility Act, 
Paperwork Reduction Act, and Executive Orders 12866, 12630, 12778, and 
12612

    The Department has determined that this rule does not constitute a 
major Federal action significantly affecting the quality of the human 
environment. Therefore, no further analysis pursuant to section 
102(2)(C) of the National Environmental Policy Act (43 U.S.C. 
4332(2)(C)) has been prepared.
    The Department certifies that this rule will not have a significant 
economic effect on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The rule provides 
technical procedural guidance for the assessment of damages to natural 
resources. It does not directly impose any additional cost. As the rule 
applies to natural resource trustees, it is not expected to have an 
effect on a substantial number of small entities.
    It has been determined that this rule does not contain information 
collection requirements that require approval by the Office of 
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 
et seq.).
    This rule has been reviewed under Executive Order 12866. It has 
been determined that this rule does not have takings implications under 
Executive Order 12630. The Department has certified to the Office of 
Management and Budget that this rule meets the applicable standards 
provided in Sections 2(a) and 2(b)(2) of Executive Order 12778. It has 
been determined that this rule does not have federalism implications 
under Executive Order 12612.

List of Subjects in 43 CFR Part 11

    Environmental protection, Fish, Great Lakes, Hazardous substances, 
Incorporation by reference, Indian lands, National forests, National 
parks, Natural resources, Oil pollution, Public lands, Recreation 
areas, Wildlife, Wildlife refuges.

    For the reasons set out in the preamble, Title 43, Subtitle A of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 11--NATURAL RESOURCE DAMAGE ASSESSMENTS

    1. The authority citation for Part 11 continues to read as follows:

    Authority 42 U.S.C. 9651(c), as amended.

Subpart A--Introduction

    2. Section 11.15 is amended by revising paragraph (a)(1) to read as 
follows:


Sec. 11.15  Actions against the responsible party for damages.

    (a) * * *
    (1) Damages as determined in accordance with this part and 
calculated based on injuries occurring from the onset of the discharge 
or release through the recovery period, less any mitigation of those 
injuries by response actions taken or anticipated, plus any increase in 
injuries that are reasonably unavoidable as a result of response 
actions taken or anticipated;
* * * * *
    3. Section 11.18 is amended by adding a new paragraph (a)(5) to 
read as follows:


Sec. 11.18  Incorporation by reference

    (a) * * *
    (5) ``CERCLA Type A Natural Resource Damage Assessment Model for 
Great Lakes Environments Technical Documentation,'' Volumes I-IV, dated 
August 1994, prepared for the U.S. Department of the Interior by 
Applied Science Associates, Inc., Narragansett, Rhode Island, and HBRS, 
Inc., Madison, Wisconsin, available from the Office of Environmental 
Policy and Compliance, Room 2340, Department of the Interior, 1849 C 
Street, NW, Washington, DC 20240, telephone (202) 208-3301. Reference 
is made to this publication in Secs. 11.33(c)(1)(i)(A) and 11.42(a), 
(b), and (c)(2) of this part.

Subpart C--Assessment Plan Phase

    4. Section 11.31 is amended by revising paragraphs (a)(1) and (b) 
to read as follows:


Sec. 11.31  Assessment Plan--content

    (a) General content and level of detail. (1) The Assessment Plan 
shall identify and document the use of all of the type A and/or type B 
procedures that will be performed.
* * * * *
    (b) Deciding whether to use a type A procedure, type B procedures, 
or a combination. The Assessment Plan shall include documentation of 
the authorized official's decision whether to use a type A procedure, 
type B procedures, or a combination. This determination shall be based 
on the guidance provided in Sec. 11.33 of this part.
* * * * *
    5. Section 11.32 is amended by adding a new paragraph (f)(3) to 
read as follows:


Sec. 11.32  Assessment plan--development.

* * * * *
    (f) * * *
    (3) Paragraphs (f)(1) and (f)(2) of this section do not apply to 
the use of the type A procedures provided for in subpart D of this 
part.
    6. Section 11.33 is amended by revising the heading of the section, 
revising paragraph (a), and adding new paragraphs (c), (d), and (e) to 
read as follows:


Sec. 11.33  Assessment Plan--deciding whether to use a type A 
procedure, type B procedures, or a combination.

    (a) General. The authorized official shall decide whether to use a 
type A procedure provided for in subpart D of this part, type B 
procedures provided for in subpart E of this part, or a combination of 
type A and type B procedures.
* * * * *
    (c) Great Lakes environments. (1) When a discharged oil or released 
hazardous substance enters a Great Lakes environment, as that term is 
defined in Sec. 11.42(b) of this part, the authorized official shall 
determine whether the following conditions are met:
    (i) Primary conditions--(A) The discharged oil or released 
hazardous substance is identified in Table III.2.4 or Table III.2.1 of 
Volume III of ``CERCLA Type A Natural Resource Damage Assessment Model 
for Great Lakes Environments Technical Documentation,'' dated August 
1994, U.S. Department of the Interior (incorporated by reference, see 
Sec. 11.18);
    (B) The discharge or release was minor;
    (C) The discharged oil or released hazardous substance entered a 
Great Lakes environment at or near the water surface;
    (D) The spatial and temporal distribution of biological resources 
in the area where the discharged oil or released hazardous substance 
entered a Great Lakes environment is reasonably represented by the data 
contained in the NRDAM/GLE, as defined in Sec. 11.42(b) of this part; 
and
    (E) Subsurface currents are either: not expected to significantly 
affect the fate of the discharged oil or released hazardous substance; 
or reasonably uniform with depth over the water column in the area 
affected by the discharge or release.
    (ii) Secondary conditions--(A) The discharge or release was a 
single event;
    (B) Response actions have not caused significant injury to natural 
resources;
    (C) The primary natural resources of concern affected by the 
discharge or release are biological resources;
    (D) Exposure of biological resources to the discharged oil or 
released hazardous substance results primarily through surface water 
pathways, as opposed to air, groundwater, biological, or geologic 
pathways;
    (E) The primary injuries to biological resources are one or more of 
the following: direct mortality resulting from short-term exposure to 
the discharged oil or released hazardous substance; direct loss of 
production resulting from short-term exposure to the discharged oil or 
released hazardous substance; indirect mortality resulting from food 
web losses; and indirect loss of production resulting from food web 
losses; and
    (F) All significant compensable values, as defined in 
Sec. 11.83(c)(1) of this part, result from one or more of the 
following: lost harvests of commercially exploited fish species; lost 
harvests of commercially exploited furbearer species; lost harvests of 
recreationally harvested fish species; lost harvests of recreationally 
harvested waterfowl species; lost wildlife viewing for trips 
originating within the immediate area; lost beach visitation due to 
closure; and lost boating due to closure.
    (2) If the discharged oil or released hazardous substance entered a 
Great Lakes environment, as that term is defined in Sec. 11.42(b) of 
this part, and the authorized official determines that all of the 
conditions listed in paragraphs (c)(1)(i) and (c)(1)(ii) of this 
section are met, the authorized official shall use the type A procedure 
provided for in Sec. 11.42 of this part to calculate all damages.
    (3) If the discharged oil or released hazardous substance entered a 
Great Lakes environment, as that term is defined in Sec. 11.42(b) of 
this part, and the authorized official determines that all of the 
conditions listed in paragraph (c)(1)(i) of this section are met and 
that one or more of the conditions listed in paragraph (c)(1)(ii) of 
this section are not met, the authorized official shall make a 
determination whether to use the type A procedure provided for in 
Sec. 11.42 of this part, the type B procedures provided for in subpart 
E of this part, or a combination. This determination shall be based on 
considerations of reasonable cost and cost effectiveness, as defined in 
Sec. 11.14 of this part. The authorized official may use both type A 
and type B procedures only if: the type B procedures are used to 
calculate damages for types of natural resource injuries and 
compensable values, as defined in Secs. 11.62 and 11.83(c)(1) 
respectively of this part, that are not addressed by the type A 
procedure; the type A procedure is used to calculate all other damages; 
and the authorized official does not double count or the authorized 
official uses techniques that allow any double counting to be estimated 
and eliminated in the final damage calculation.
    (4) If the discharged oil or released hazardous substance entered a 
Great Lakes environment, as that term is defined in Sec. 11.42(b) of 
this part, and the authorized official determines that one or more of 
the conditions listed in paragraph (c)(1)(i) of this section are not 
met, the authorized official shall use type B procedures to calculate 
all damages.
    (5) Notwithstanding paragraphs (c)(2) and (c)(3) of this section, 
the authorized official shall use type B procedures rather than a type 
A procedure whenever a potentially responsible party submits a written 
request for use of type B procedures and agrees within a time frame 
acceptable to the authorized official to advance all reasonable costs 
of using type B procedures.
    (d) Other environments. If the discharged oil or released hazardous 
substance did not enter one of the environments discussed in this 
section, the authorized official shall use type B procedures to 
calculate all damages.
    (e) Effect of selection of type B procedures. If, in accordance 
with this section, the authorized official decides to use type B 
procedures in lieu of a type A procedure, and the authorized official 
cannot confirm exposure in accordance with Sec. 11.34 of this part, the 
authorized official may not then re-select the type A procedure.
    7. Section 11.34 is amended by adding a new paragraph (a)(3) to 
read as follows:


Sec. 11.34  Assessment Plan--confirmation of exposure

    (a) Requirement. * * *
    (3) This section does not apply to the use of the type A procedures 
provided for in subpart D of this part.
    8. The heading of subpart D is revised to read as follows:

Subpart D--Type A Procedures

    9. Section 11.40 is amended by revising the section heading, 
revising paragraph (a), removing paragraph (b), redesignating paragraph 
(c) as paragraph (b) and revising the heading of newly designated 
paragraph (b) to read as follows:


Sec. 11.40  Type A procedures--general.

    (a) Purpose. The purpose of a type A procedure is to provide a 
standardized methodology for performing Injury Determination, 
Quantification, and Damage Determination as part of a simplified 
natural resource damage assessment.
    (b) Assessment costs of using a type A procedure.* * *
    10. A new Sec. 11.42 is added to read as follows:


Sec. 11.42  Great Lakes environments.

    (a) General. The type A procedure for Great Lakes environments 
shall be performed in accordance with this section. The procedure 
requires the use of the Natural Resource Damage Assessment Model for 
Great Lakes Environments, Version 1.31 (NRDAM/GLE), which is included 
and explained in ``CERCLA Type A Natural Resource Damage Assessment 
Model for Great Lakes Environments Technical Documentation,'' Volumes 
I-IV, dated August 1994, U.S. Department of the Interior (incorporated 
by reference, see Sec. 11.18). The NRDAM/GLE performs Injury 
Determination, Quantification, and Damage Determination using the 
incident-specific data collected by the authorized official pursuant to 
paragraphs (c) and (d) of this section.
    (b) Definitions. As used in this section the phrase:
    CAS number means the Chemical Abstract Service Registry Number 
assigned to a hazardous substance by the American Chemical Society, 
Chemical Abstract Service, or the number assigned to an oil as 
specified in Table III.2.1 and Table III.2.4 of Volume III of ``CERCLA 
Type A Natural Resource Damage Assessment Model for Great Lakes 
Environments Technical Documentation,'' dated August 1994, U.S. 
Department of the Interior (incorporated by reference, see Sec. 11.18).
    Closure of a boating area means the prohibition by an appropriate 
agency of recreational boating in a specified area in a Great Lakes 
environment within five kilometers of the shore due to a discharge of 
oil or a release of a hazardous substance.
    Closure of a Federal beach means the prohibition by an appropriate 
agency of recreational or other public uses in a specified length of a 
Federally managed public beach in a Great Lakes environment due to a 
discharge of oil or a release of a hazardous substance.
    Closure of a fishery means the prohibition by an appropriate agency 
of commercial and recreational fishing in a specified area in a Great 
Lakes environment due to a discharge of oil or a release of a hazardous 
substance.
    Closure of a mammal hunting or trapping area means the prohibition 
by an appropriate agency of commercial and recreational hunting or 
trapping of mammals in a specified area in a Great Lakes environment 
due to a discharge of oil or a release of a hazardous substance.
    Closure of a State beach means the prohibition by an appropriate 
agency of recreational or other public uses in a specified length of a 
State or municipally managed public beach in a Great Lakes environment 
due to a discharge of oil or a release of a hazardous substance.
    Closure of a waterfowl hunting area means the prohibition by an 
appropriate agency of recreational hunting for waterfowl in a specified 
area in a Great Lakes environment due to a discharge of oil or a 
release of a hazardous substance.
    Great Lakes environment means any area within Lake Superior, Lake 
Michigan, Lake Huron, Lake Erie, Lake Ontario, Lake St. Clair, the St. 
Mary River, the St. Clair River, the Detroit River, the Niagara River, 
the St. Lawrence River downstream to approximately 45 deg. N, 75 deg. 
W, or their contiguous wetlands or shorelines.
    Implicit Price Deflator means the quarterly implicit price deflator 
for the Gross National Product as provided in the Survey of Current 
Business, published by the U.S. Department of Commerce/Bureau of 
Economic Analysis, Washington, D.C., (202) 606-9900.
    Nearshore fishery means a fishery in an open water area that is 
less than 30 feet in depth or is in a connecting channel.
    NRDAM/GLE means the Natural Resource Damage Assessment Model for 
Great Lakes Environments, Version 1.31 (NRDAM/GLE), which is included 
and explained in ``CERCLA Type A Natural Resource Damage Assessment 
Model for Great Lakes Environments Technical Documentation,'' Volumes 
I-IV, dated August 1994, U.S. Department of the Interior (incorporated 
by reference, see Sec. 11.18). The NRDAM/GLE is a computer model 
consisting of integrated physical fates, biological effects, 
restoration, and economic valuation submodels and databases.
    Offshore fishery means a fishery in an open water area that is 30 
feet or more in depth.
    Rocky beach means a beach 75 percent or more of which is covered by 
bedrock, stones, or boulders.
    Sandy beach means a beach less than 75 percent of which is covered 
by bedrock, stones, or boulders.
    Wetland fishery means a fishery that is not in an open water area.
    (c) Required user-supplied data. (1) The authorized official shall 
supply the incident-specific information described in paragraphs (c)(2) 
through (c)(11) of this section for use as inputs to the NRDAM/GLE. The 
authorized official shall document the information in the Assessment 
Plan.
    (2) The authorized official shall specify the CAS number of the 
discharged oil or released hazardous substance provided in Table 
III.2.4 or Table III.2.1 of Volume III of ``CERCLA Type A Natural 
Resource Damage Assessment Model for the Great Lakes Environments 
Technical Documentation,'' dated August 1994, U.S. Department of the 
Interior (incorporated by reference, see Sec. 11.18). For incidents 
involving the simultaneous discharge or release of two or more oils or 
hazardous substances, or when a mixture of one or more oils or 
hazardous substances has been discharged or released in a single 
incident, the authorized official shall select one of the oils or 
hazardous substances present in the simultaneous discharge or release, 
or in the mixture.
    (3) The authorized official shall specify the estimated total mass 
of discharged oil or released hazardous substance that entered a Great 
Lakes environment stated in tonnes, barrels, gallons, liters, pounds, 
or kilograms. For incidents involving the simultaneous discharge or 
release of two or more oils or hazardous substances, or when a mixture 
of one or more oils or hazardous substances has been discharged or 
released in a single incident, the authorized official shall specify 
only the mass of the oil or hazardous substance selected under 
paragraph (c)(2) of this section.
    (4) The authorized official shall specify the estimated length of 
time over which the discharged oil or released hazardous substance 
entered a Great Lakes environment stated in hours.
    (5) The authorized official shall specify the year, month, day, and 
estimated hour when the discharged oil or released hazardous substance 
first entered a Great Lakes environment.
    (6) The authorized official shall specify the latitude and 
longitude where the discharged oil or released hazardous substance 
entered a Great Lakes environment.
    (7) The authorized official shall specify the estimated wind 
velocity and direction at the point where the discharged oil or 
released hazardous substance entered a Great Lakes environment during 
the 30-day period beginning 24 hours before the discharged oil or 
released hazardous substance entered a Great Lakes environment. The 
authorized official shall specify at least one wind velocity stated in 
knots and the corresponding wind direction stated in the degree angle 
of the wind's origin.
    (8) The authorized official shall specify whether response actions 
to remove the discharged oil or released hazardous substance from the 
water surface, bottom sediments, or shoreline have been conducted. If 
response actions to remove the discharged oil or released hazardous 
substance were conducted, the authorized official shall specify the 
percentage of the discharged oil or released hazardous substance that 
was removed from the water surface, bottom sediments, and shoreline as 
a result of the response actions; and the number of days after the 
discharged oil or released hazardous substance entered a Great Lakes 
environment that the removal began and ended.
    (9) The authorized official shall specify whether there were any 
closures of boating areas, Federal beaches, State beaches, fisheries, 
mammal hunting or trapping areas, or waterfowl hunting areas. If there 
were any closures and damages for such closures are to be calculated, 
the authorized official shall establish the following information and 
shall include in the Assessment Plan documentation that the closure 
resulted from the discharge or release being investigated:
    (i) For closure of a boating area, the authorized official shall 
specify: The area closed stated in square kilometers; the number of 
weekend days of closure stated by calendar month; and the number of 
weekday days of closure stated by calendar month.
    (ii) For closure of a Federal beach, the authorized official shall 
specify: The length closed stated in meters; the number of days of 
closure stated by calendar month; and whether the closed area was a 
rocky or sandy beach.
    (iii) For closure of a State beach, the authorized official shall 
specify: The length closed stated in meters; the number of days of 
closure stated by calendar month; and whether the closed area was a 
rocky or sandy beach.
    (iv) For closure of a fishery, the authorized official shall 
specify: the area closed stated in square kilometers; the number of 
days of closure; and whether the area closed was an offshore, 
nearshore, or wetland fishery.
    (v) For closure of a mammal hunting or trapping area, the 
authorized official shall specify: the area closed stated in square 
kilometers; and the number of days of closure.
    (vi) For closure of a waterfowl hunting area, the authorized 
official shall specify: the area closed stated in square kilometers; 
and the number of days of closure.
    (10) The authorized official shall specify the Implicit Price 
Deflator for the quarter during which the discharged oil or released 
hazardous substance entered a Great Lakes environment.
    (11) The authorized official shall specify whether the NRDAM/GLE 
should account for the effects of ice cover.
    (d) Additional user-supplied data. (1) The authorized official may 
collect any of the additional incident-specific information described 
in paragraphs (d)(2) through (d)(5) of this section for use as inputs 
to the NRDAM/GLE if: the authorized official estimates that conditions 
where the discharged oil or released hazardous substance entered a 
Great Lakes environment varied significantly from the typical 
conditions for the time of year in which the discharge or release 
entered a Great Lakes environment; and the incident-specific 
information can be collected consistent with the requirements of 
reasonable cost and cost effectiveness, as defined in Sec. 11.14 of 
this part. If the authorized official makes a determination to collect 
any of the incident-specific information described in paragraphs (d)(2) 
through (d)(5) of this section, the rationale for the determination and 
the information collected shall be documented in the Assessment Plan. 
If the information is not collected, the NRDAM/GLE will supply default 
parameters.
    (2) Subject to paragraph (d)(1) of this section, the authorized 
official may specify the estimated water temperature stated in degrees 
Celsius at the time and point where the discharged oil or released 
hazardous substance entered a Great Lakes environment.
    (3) Subject to paragraph (d)(1) of this section, the authorized 
official may specify the estimated total suspended sediment 
concentration stated in milligrams per liter at the time and point 
where the discharged oil or released hazardous substance entered a 
Great Lakes environment.
    (4) Subject to paragraph (d)(1) of this section, the authorized 
official may specify the estimated mean settling velocity of suspended 
solids stated in meters per day at the time and point where the 
discharged oil or released hazardous substance entered a Great Lakes 
environment.
    (5) Subject to paragraph (d)(1) of this section, the authorized 
official may specify the estimated air temperature stated in degrees 
Celsius at the time and point where the discharged oil or released 
hazardous substance entered a Great Lakes environment.
    (e) Applying the NRDAM/GLE. The authorized official shall apply the 
NRDAM/GLE using the incident-specific data supplied pursuant to 
paragraphs (c) and (d) of this section.
    (f) Report of Assessment. After applying the NRDAM/GLE, the 
authorized official shall prepare a Report of Assessment, as described 
in Sec. 11.90 of this part.

Subpart F--Post-Assessment Phase

    11. Section 11.90 is amended by revising paragraphs (a) and (b) and 
revising the first sentence of paragraph (c) as follows:


Sec. 11.90  Post-assessment phase--report of assessment

    (a) Requirement. At the conclusion of an assessment, the authorized 
official shall prepare a Report of Assessment that shall consist of the 
Preassessment Screen Determination, the Assessment Plan, and the 
information specified in paragraphs (b) and (c) of this section as 
applicable.
    (b) Type A procedures. When the authorized official has used a type 
A procedure in accordance with subpart D of this part, the Report of 
Assessment shall include the following information:
    (1) When the type A procedure for coastal and marine environments 
provided for in Sec. 11.41 of this part is used, the Report of 
Assessment shall include the printed assessment report from the 
application(s) of the NRDAM/CME, as that term is defined in 
Sec. 11.41(b) of this part.
    (2) When the type A procedure for Great Lakes environments provided 
for in Sec. 11.42 of this part is used, the Report of Assessment shall 
include the printed assessment report from the application(s) of the 
NRDAM/GLE, as that term is defined in Sec. 11.42(b) of this part.
    (c) Type B procedures. When the authorized official has used type B 
procedures in accordance with subpart E of this part, the Report of 
Assessment shall include all documentation supporting the 
determinations required in the Injury Determination phase, the 
Quantification phase, and the Damage Determination phase, and 
specifically including the test results of any and all methodologies 
performed in these phases. * * *
    12. Section 11.91 is amended by revising the first sentence of 
paragraph (a), removing the heading of paragraph (c), redesignating 
paragraph (c) as paragraph (c)(1), adding a new heading to paragraph 
(c), and adding a new paragraph (c)(2) to read as follows:


Sec. 11.91  Post-assessment phase--demand.

    (a) Requirement and content. At the conclusion of the assessment, 
the authorized official shall present to the potentially responsible 
party a demand in writing for a sum certain, representing the damages 
determined in accordance with this part and the reasonable cost of the 
assessment, adjusted if necessary in accordance with Sec. 11.92(b) of 
this part, delivered in such a manner as will establish the date of 
receipt. * * *
* * * * *
    (c) Judicial review. * * *
    (2) Judicial review of the damage assessment determinations 
performed by an authorized official in accordance with this part using 
one of the type A procedures provided for in subpart D of this part 
shall be limited to the authorized official's determination under 
Sec. 11.33 of this part to use the type A procedure and the incident-
specific data supplied by the authorized official for use in the type A 
procedure. When a Federal or State authorized official performs an 
assessment in accordance with this part using a type A procedure, the 
rebuttable presumption provided in paragraph (c)(1) of this section 
shall extend to the authorized official's determination to use the type 
A procedure and to the incident-specific data collected by the 
authorized official.
* * * * *
    Dated: August 2, 1994.
Bonnie R. Cohen,
Assistant Secretary--Policy, Management, and Budget.
[FR Doc. 94-19163 Filed 8-5-94; 8:45 am]
BILLING CODE 4310-RG-P