[Federal Register Volume 59, Number 201 (Wednesday, October 19, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25839]


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[Federal Register: October 19, 1994]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 11

RIN 1090-AA29

 

Natural Resource Damage Assessments

AGENCY: Department of the Interior.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Department of the Interior is initiating a biennial review 
of 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 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. This advance notice solicits 
comment on how the administrative process and all but one of the type B 
procedures should be revised.

DATES: Comments will be accepted through January 17, 1995.

ADDRESSES: Comments should be sent in duplicate to the Office of 
Environmental Policy and Compliance, ATTN: NRDA Rule--Biennial Review, 
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).

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

SUPPLEMENTARY INFORMATION: This notice is organized as follows:

I. Statutory Provisions
II. Overview of the Department's Natural Resource Damage Assessment 
Regulations
    A. Preassessment Phase
    B. Assessment Plan Phase
    C. Assessment Phase
    D. Post-Assessment Phase
III. Related Rulemakings
IV. Potential Topics for Review
    A. Administrative Process
    B. Injury
    C. Economics
    D. Legal Topics
    E. Restoration, Rehabilitation, Replacement, and/or Acquisition 
of Equivalent Resources

I. Statutory Provisions

    This notice announces the commencement of a review of 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 sec. 
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. CERCLA defines ``State'' to include:

    The District of Columbia, the Commonwealth of Puerto Rico, Guam, 
American Samoa, the United States Virgin Islands, the Commonwealth 
of the Northern Marianas, and any other territory or possession over 
which the United States has jurisdiction. CERCLA sec. 101(27).

    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 sec. 301(c)(1). These regulations are to 
identify the ``best available'' procedures for assessing natural 
resource damages. CERCLA sec. 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 sec. 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 the natural resource damage assessment 
regulations receive a rebuttable presumption in court. CERCLA sec. 
107(f)(2)(C). The promulgation of these regulations was delegated to 
the Department of the Interior (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). The authority to sue 
for natural resource damages resulting from discharges of oil into 
navigable waters was extended to not only Federal and State natural 
resource trustees but also Indian tribe and foreign natural resource 
trustees. OPA also 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 obtain a rebuttable presumption for natural 
resource damage assessments under OPA.
    The Department's natural resource damage assessment regulations 
must be reviewed, and revised as appropriate, every two years. CERCLA 
sec. 301(c)(3). The regulations provide an administrative process for 
conducting assessments as well as technical type A and type B 
procedures for the actual determination of injuries and damages. The 
purpose of this advance notice is to announce the beginning of the 
biennial review of the administrative process and all but one of the 
type B procedures.

II. 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); and 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. The 
administrative process consists of four phases: The Preassessment 
Phase, the Assessment Plan Phase, the Assessment Phase, and the Post-
Assessment Phase. The regulations also provide technical type A and 
type B procedures to be used during the Assessment Phase for the actual 
determination of injuries and damages.
    During this biennial review, the Department intends to examine all 
aspects of the Preassessment Phase, Assessment Plan Phase, and Post-
Assessment Phase, as well as all but one of the type B procedures 
available for use during the Assessment Phase. The Department is 
providing the following brief summary of its existing regulations to 
assist commenters. Commenters should consult 43 CFR part 11 and 59 FR 
14261 to obtain more detailed information about the administrative 
process and type B procedures.

A. Preassessment Phase

    The Preassessment Phase covers the activities that precede the 
actual assessment. Upon detecting or receiving notification of a 
discharge or release, trustee officials decide whether further 
assessment actions are warranted. The Department's regulations provide 
a number of criteria to assist trustee officials in making this 
decision. The trustee officials' decision is documented in the 
Preassessment Screen Determination. For more information on the 
Preassessment Phase, see subpart B of 43 CFR part 11, as amended by 59 
FR 14281.

B. Assessment Plan Phase

    If trustee officials decide during the Preassessment Phase that the 
criteria for continuing an assessment have been met, they then enter 
the Assessment Plan Phase. The Assessment Plan Phase includes various 
notification and coordination activities. The Department's regulations 
provide guidance on coordination among trustee officials, including 
selection of a ``lead authorized official'' to act as an administrative 
point of contact. Trustee officials are also required to notify the 
PRPs of their intent to perform an assessment.
    During the Assessment Plan Phase, trustee officials also prepare a 
written Assessment Plan describing the procedures, type A, type B, or 
both, that will be used to determine injury and damages. The Assessment 
Plan is designed to focus and organize the assessment, which helps 
ensure that only reasonable assessment costs are incurred. The 
Assessment Plan is subject to public review and comment. For more 
information on the Assessment Plan Phase, see subpart C of 43 CFR part 
11, as amended by 59 FR 14281-83.

C. Assessment Phase

    During the Assessment Phase, the work described in the Assessment 
Plan is conducted. 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 and whether there is a pathway of exposure 
between the site of the discharge or release and the injured resources. 
If trustee officials determine that resources have been injured and 
that a pathway of exposure exists, they proceed to the Quantification 
step.
    During Quantification, trustee officials quantify the extent of the 
resource injuries by measuring the reduction from baseline conditions. 
``Baseline'' conditions are the conditions that would have existed had 
the discharge or release not occurred. Resources perform functions for 
humans and for other resources, such as provision of a food source, 
flood control, or provision of recreational opportunities. These 
functions are known as ``services.'' Reductions from baseline 
conditions can be measured by evaluating the change in the level of 
services provided by the injured resources.
    Finally, in Damage Determination, trustee officials calculate the 
monetary compensation to be sought as damages for the quantified 
natural resource injuries. The basic measure of damages is the cost of 
restoring, rehabilitating, replacing, and/or acquiring the equivalent 
of the injured resources. The Department's regulations also allow for 
an additional component of damages. Trustee officials have the 
discretion to assess damages for the economic value of the services 
lost by the public from the date of the discharge or release until 
completion of restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources.
    This value is known as ``compensable value.''
    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 to perform Injury Determination, Quantification, and Damage 
Determination for minor discharges or releases in coastal or marine 
environments. The computer model is known as the Natural Resource 
Damage Assessment Model for Coastal and Marine Environments (NRDAM/
CME). For more information on use of a type A procedure during the 
Assessment Phase, see subpart D of 43 CFR part 11. There are two 
ongoing rulemakings concerning type A procedures. The Department is 
revising the NRDAM/CME in compliance with a court order and the 
statutory biennial review requirement. The Department is also 
developing a new type A computer model for use in Great Lakes 
environments. Therefore, the Department does not intend to address the 
content of the type A procedures during this review.
    When a type A procedure is not applicable, trustee officials use 
type B procedures instead of a type A procedure. In some cases, trustee 
officials may also use type B procedures to supplement damages 
calculated through use of an applicable 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 Department's regulations divide natural 
resources into five categories: surface water, ground water, air, 
geologic, and biological resources. Specific definitions of injury are 
provided for each of these categories. The regulations provide guidance 
on the selection of testing and sampling methodologies to determine 
whether an injury has occurred and whether a pathway of exposure 
exists. The regulations also provide guidance on measuring the change 
in baseline conditions during Quantification.
    During the Damage Determination step of an assessment incorporating 
type B procedures, trustee officials identify and consider a reasonable 
number of possible alternatives for restoring, rehabilitating, 
replacing, and/or acquiring the equivalent of the injured resources. 
Trustee officials select one of the possible alternatives based on 
several factors. The trustee officials document their decisions in a 
Restoration and Compensation Determination Plan, which is part of the 
overall Assessment Plan and, thus, subject to public review and 
comment.
    Once trustee officials have selected a restoration, rehabilitation, 
replacement, and/or acquisition alternative, they select one or more of 
the type B cost-estimating methodologies listed in the regulations. The 
selected methodologies are used to estimate the cost of implementing 
the restoration, rehabilitation, replacement, and/or acquisition 
alternative. This estimated cost is the basic measure of damages. 
Trustee officials also have the discretion to include compensable value 
in their damage claim. Compensable value is calculated by applying one 
or more of the type B economic valuation methodologies listed in the 
regulations. 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.

D. Post-Assessment Phase

    The Department's regulations cover the entire process that trustee 
officials need to follow if they file a lawsuit and expect to obtain a 
rebuttable presumption. Trustee officials have the authority to settle 
their damage claims at any time during the administrative process. 
However, if the trustee officials do not settle with the PRPs by the 
end of the Assessment Phase, then 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 funds. When type B procedures 
are used, the post-assessment Restoration Plan is based on the 
restoration, rehabilitation, replacement, and/or acquisition 
alternative selected in the Restoration and Compensation Determination 
Plan during the Assessment Phase. For more information on the Post-
Assessment Phase, see subpart F of 43 CFR part 11, as amended by 59 FR 
14287.

III. Related Rulemakings

    There are several ongoing natural resource damage assessment 
rulemakings other than this biennial review. State of Ohio v. United 
States Department of the Interior (Ohio v. Interior) remanded portions 
of the administrative process and the type B procedures. 880 F.2d 432 
(D.C. Cir. 1989). On March 25, 1994, the Department published a final 
rule that addressed all but one aspect of the remand. 59 FR 14261. The 
March 25, 1994, final rule did not address the assessment of lost 
nonuse values.
    There are two potential types of compensable values associated with 
natural resource injuries: Lost use values and lost nonuse values. Use 
values are derived through activities such as hiking or fishing. Nonuse 
values 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. The only method available for the 
express purpose of estimating lost nonuse values is the contingent 
valuation methodology (CV). 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 closed on October 7, 1994. 59 FR 32175 (June 22, 1994). The 
Department does not intend to address the assessment of lost nonuse 
values during this review.
    State of Colorado v. United States Department of the Interior 
remanded the type A procedure for coastal and marine environments. 880 
F.2d 481 (D.C. Cir. 1989). The Department intends to publish a proposed 
rule to revise the NRDAM/CME later this month.
    The Department has begun the development of an additional type A 
procedure for use in Great Lakes environments. This type A procedure 
uses a computer model known as the Natural Resource Damage Assessment 
Model for Great Lakes Environments (NRDAM/GLE). The Department 
published a proposed rule on August 8, 1994. 59 FR 40319. The 
Department does not intend to address the content of the type A 
procedures during this biennial review.
    Also, 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. The comment period on NOAA's 
proposed rule closed on October 7, 1994. 59 FR 32148 (June 22, 1994).

IV. Potential Topics for Review

    During this rulemaking, the Department will be considering ways of 
revising the administrative process and the type B procedures to 
reflect both experience to date in the use of the regulations as well 
as scientific and technical advances. The Department solicits comment 
on all aspects of the administrative process and the type B procedures, 
other than the assessment of lost nonuse values. Based on the comments 
received and its own analysis, the Department will develop a proposed 
rule to revise the regulations.
    The Department has already received numerous comments on the 
administrative process and type B procedures over the last few years. 
One source of comments has been State briefings on use of the 
regulations. The Department has provided these briefings to State 
trustee officials at their request. Another source of comments has been 
telephone calls from individuals requesting technical assistance in the 
application of the regulations to particular cases. Also, in the course 
of revising the regulations to comply with Ohio v. Interior, the 
Department received numerous comments that were beyond the scope of 
that rulemaking. As indicated during the Ohio v. Interior rulemaking, 
the Department has included a discussion of all of those comments in 
this notice. See 59 FR 14266.
    The following discussion is intended neither as an exhaustive 
treatment of all possible topics for review nor as a definitive 
indication of the Department's position. Instead, the discussion is 
simply provided as an aid in generating further information and 
analysis. Commenters are encouraged to provide comments not only on the 
topics discussed in this notice but also on any other topics relating 
to the administrative process or type B procedures that they deem 
appropriate.
    During this biennial review, the Department will also examine the 
relationship between its CERCLA damage assessment regulations and the 
OPA damage assessment regulations being developed by NOAA. The 
Department will consider ways of clarifying the applicability of its 
regulations versus NOAA's regulations. In this regard, the Department 
solicits comment on what provisions, if any, its regulations should 
continue to make for assessing damages from oil discharges. The 
Department will also coordinate with NOAA to ensure the greatest 
consistency appropriate between the two sets of regulations. The 
Department has noted in the following discussion certain areas where 
NOAA has proposed an approach that differs from that currently taken in 
the Department's regulations. The Department solicits comment on 
whether the Department's regulations should be revised to follow the 
approach proposed by NOAA in areas of difference.

A. Administrative Process

1. Streamlining
    One frequent comment has been that the Department's regulations are 
``too wordy'' and ``not in plain English.'' Many commenters have 
indicated that the administrative process is too complicated and needs 
to be streamlined. NOAA's proposed OPA rule provides for an ``Expedited 
Damage Assessment'' based on ``limited, focused studies in order to 
facilitate restoration as soon as possible.'' 59 FR 1177.
    Given the wide variety of activities involved in assessing damages, 
the number of legal, scientific, and economic issues involved in damage 
assessments, and the broad range of possible types of natural resource 
damage cases, a certain level of intricacy is unavoidable in the 
regulations. However, the administrative process and type B procedures 
were designed to provide trustee officials with the flexibility to 
tailor the scope and level of detail of an assessment to meet the needs 
of the particular case. Trustee officials choose from a menu of 
available type B procedures, using only those procedures and assessing 
only those injuries and losses that they deem appropriate and adjusting 
the level of documentation accordingly. The regulations allow both for 
the performance of a limited number of short-term studies in a simple 
case involving the release of a single substance affecting a single 
resource, as well as the performance of numerous, long-term studies in 
a complex case of a release of multiple substances affecting multiple 
resources.
    Nevertheless, the Department aims to make the regulations as clear 
and straightforward as possible. Therefore, the Department solicits 
comment on specific aspects of the administrative process that 
commenters consider unduly burdensome or complicated.
2. Preassessment Phase
    Several commenters requested additional guidance on the conduct of 
preassessment activities. NOAA has developed a draft guidance document 
on preassessment activities under OPA. See 59 FR 1065.
    The Department's regulations already contain some guidance on 
preassessment activities. See 43 CFR Secs. 11.20-11.25. The Department 
notes that developing guidance requires balancing increased 
predictability against reduced flexibility to respond to the unique 
features of the broad range of potential natural resource damage cases. 
Thus, there is a limit to the level of specificity that can be 
appropriately provided in the regulations. With this in mind, the 
Department solicits comment on specific aspects of the Preassessment 
Phase that warrant additional guidance. The Department also solicits 
comment on whether the guidance should be incorporated in the 
regulations or in a separate guidance document.
    Some commenters questioned whether a preassessment screen should be 
required when a type A procedure is used. During the preassessment 
screen, trustee officials determine whether the discharge or release is 
covered by CWA or CERCLA and whether they have a reasonable probability 
of making a successful claim before expending efforts to carry out a 
damage assessment. See 43 CFR 11.23(b). This determination appears to 
be relevant regardless of the substantive assessment methods ultimately 
used. Moreover, the determination whether to use a type A procedure, 
type B procedures, or both is not made until the Assessment Plan Phase, 
which follows the performance of the preassessment screen. See 43 CFR 
11.33. The Department solicits comment on ways to reduce the burden of 
the preassessment screen while at the same time ensuring that trustee 
officials adequately consider the appropriateness of pursuing a damage 
claim before proceeding with either a type A procedure, type B 
procedures, or both.
3. Coordination With Other Agencies
    A number of commenters requested additional guidance on 
coordination among trustee agencies and between trustee agencies and 
response agencies. Commenters raised questions about the lead 
authorized official. Some commenters sought clarification of the role 
of the lead authorized official. Others requested a prohibition against 
the designation of a trustee official who is also a PRP as lead 
authorized official.
    Suggestions for improved coordination between trustee and response 
activities included: restricting the time allowed to conduct an 
assessment in order to avoid potential conflicts with settlement 
negotiations between response agencies and PRPs; requiring trustee 
officials to participate in the remedial planning process; requiring 
response agencies to coordinate with trustee officials; and authorizing 
the On-Scene Coordinator to contact just one Federal trustee agency and 
one State trustee agency and requiring that the contacted trustee 
agencies notify all other trustee agencies.
    The Department's regulations already provide some guidance on 
trustee coordination. See 43 CFR 11.32(a)(1). The regulations also 
include discussions of coordination with response agencies. 43 CFR 
11.23(f) and 11.31(a)(3). The Department intends to take a close look 
at these coordination provisions during the biennial review. The 
Department encourages commenters to provide suggestions on ways of 
improving coordination among trustee agencies and between trustee and 
response activities.
    NOAA's proposed OPA rule includes a model memorandum of 
understanding designed to facilitate trustee coordination. See 59 FR 
1185. Several States have been working to ensure better interagency 
coordination. Also, as part of the recent National Performance Review 
designed to streamline government operations, the Department developed 
a number of recommendations concerning the improvement of trustee 
coordination for natural resource damage assessments. The Department 
intends to examine these efforts to see what lessons can be learned.
4. Public and PRP Participation
    Several commenters voiced opinions about the opportunity for public 
and PRP participation in the assessment process. Some commenters 
thought that additional opportunities for public input were necessary 
while others stated that the existing opportunities for public 
participation were excessive. Several commenters thought that the 
Department should encourage earlier involvement of PRPs in assessments 
to avoid duplication of effort. NOAA's proposed OPA rule includes a 
model memorandum of understanding for trustee officials and PRPs to use 
when conducting joint assessments. 59 FR 1187.
    With regard to public participation, the Department's regulations 
require that the public be given an opportunity to review and comment 
on the Assessment Plan, including the Restoration and Compensation 
Determination Plan, as well as the post-assessment Restoration Plan. 
See 43 CFR 11.32(c), 11.81(d)(2), and 11.93(a), as amended by 59 FR 
14283, and 14287.
    With regard to PRP participation, the Department's regulations 
require that trustee officials provide PRPs with a Notice of Intent to 
Perform an Assessment before beginning an assessment and invite the 
participation of the PRPs. See 43 CFR 11.32(a)(2), as amended by 59 FR 
14282. Trustee officials are also required to make the Assessment Plan 
available to PRPs for review and comment. See 43 CFR 11.32(c). Finally, 
trustee officials are authorized to allow PRPs to perform assessment 
work. See 43 CFR 11.32(d).
    Determining the appropriate level of public and PRP participation 
in the natural resource damage assessment process requires balancing 
the interests of the public, the PRPs, and the trustee officials. The 
Department solicits comment on whether the regulations strike the 
appropriate balance and, if not, how the regulations could be revised 
to strike a more appropriate balance.
5. Optional Nature of Regulations
    The Department's regulations are not mandatory but must be followed 
in order to obtain a rebuttable presumption. 43 CFR 11.10. Some 
commenters have questioned the decision to make the regulations 
optional. For example, one commenter suggested that Federal trustee 
agencies be required to use the regulations unless all affected 
trustees agree otherwise. The Department solicits additional comment on 
whether to require trustee officials to use the regulations when they 
pursue a claim for natural resource damages under CERCLA.
6. Settlement Procedures
    Several commenters have requested that the regulations address 
settlement procedures. For example, when trustee officials use type B 
procedures, they must develop a preliminary estimate of damages to help 
scope the range of work appropriate during the Assessment Phase. See 43 
CFR 11.35(a), as amended by 59 FR 14282. Some commenters have suggested 
that trustee officials be encouraged to use the preliminary estimate of 
damages to initiate settlement discussions. Other commenters have 
suggested that trustee officials be encouraged to perform separate 
assessments for each affected resource to facilitate settlement. NOAA's 
proposed OPA rule includes guidance on settlement procedures. 59 FR 
1171.
    The Department strongly supports and encourages the use of the 
regulations as a framework for negotiated resolutions of natural 
resource damage claims. The Department is concerned that establishment 
of specific settlement procedures in the regulations might unduly 
restrict the flexibility of negotiating parties. However, the 
Department solicits comment on the need for and possible nature of 
settlement guidance.
7. Assessment Plan
    There have been several comments about the Assessment Plan. The 
regulations require trustee officials to develop a quality assurance 
and quality control (QA/QC) plan that satisfies the requirements listed 
in guidance developed by the Environmental Protection Agency (EPA), if 
that guidance is applicable. See 43 CFR 11.31(c)(2), as amended by 59 
FR 14281. Some commenters thought that the reference to EPA guidance 
was inappropriate.
    The Department notes that EPA's QA/QC guidance is a well-
established standard. Moreover, the Department's regulations provide 
that EPA guidance need only be followed if applicable. The Department 
solicits comment on specific areas of concern with EPA's QA/QC 
guidance.
    Some commenters questioned whether the requirement that the 
Assessment Plan include information on sampling size, design, and 
location and estimated recovery period was necessary. One commenter 
stated that the Assessment Plan should include a summary of the nature 
and extent of contamination to ensure that the approach used to assess 
damages is commensurate with the potential impact on resources.
    The purpose of the Assessment Plan is to provide the public with a 
description of, and to organize, the work that will be performed during 
the Assessment Phase. Inclusion of information about sampling size, 
design, and location and estimated recovery periods seems appropriate 
to fulfill that purpose. On the other hand, since a natural resource 
damage assessment focuses on the actual injuries to resources rather 
than the level of chemical present, inclusion of information about the 
nature and extent of contamination may not be essential. However, the 
Department solicits additional comment on the appropriate scope and 
level of detail of the Assessment Plan.
    Several commenters stated that the Department should take 
precautions to ensure that trustee officials do not undertake basic 
research when performing damage assessments. These commenters suggested 
that the Department provide a list of sources of existing scientific 
data and prohibit trustee officials from performing new research unless 
there are no existing data regarding the effect of the particular 
substance on the particular natural resources involved.
    The Department agrees that trustee officials should not undertake 
unnecessary basic research and one of the purposes of requiring a 
publicly available Assessment Plan is to protect against such research. 
A master list of existing data sources across the full range of 
potentially affected resources would be costly and time-consuming to 
compile, virtually impossible to keep up to date, and might also stifle 
development of new approaches. However, the Department solicits comment 
on alternative ways of guarding against the performance of unnecessary 
basic research.
8. Post-Assessment Phase
    Several commenters sought additional guidance on post-assessment 
activities. The Department's regulations already provide some guidance 
on post-assessment activities. See 43 CFR 11.90-11.93, as amended by 59 
FR 14287. The Department notes that developing guidance requires 
balancing increased predictability against reduced flexibility to 
respond to the unique features of the broad range of potential natural 
resource damage cases. Thus, there is a limit to the level of 
specificity that can be appropriately provided in the regulations. With 
this in mind, the Department solicits comment on specific aspects of 
the Post-assessment Phase that warrant additional guidance. The 
Department also solicits comment on whether the guidance should be 
incorporated in the regulations or in a separate guidance document.
    Commenters have sought additional clarification of the requirements 
related to the establishment of a restoration account for recovered 
damages. One commenter thought that the regulations should require 
trustee officials to hold any collected damages in interest-bearing 
accounts. Other commenters have asked whether joint damage recoveries 
by co-trustee agencies can be placed in a single restoration account. 
Trustee officials' authority to open various forms of accounts is 
determined by applicable Federal, State, and tribal fiscal law. 
Therefore, although nothing in the Department's regulations prevents 
trustee officials from placing damage recoveries in an interest-bearing 
account, the regulations do not require trustee officials to do so. 
Instead, the regulations provide that when trustee officials do not 
have the authority to place damage recoveries in an interest-bearing 
account, they should adjust their damage claim to account for 
inflation. 43 CFR 11.92(b), as amended by 59 FR 14287. Also, the 
regulations neither prohibit nor require the opening of joint accounts. 
The Department solicits comment on whether additional clarification of 
the appropriate form of restoration accounts should be provided.
9. Assessment Costs
    Many commenters sought additional clarification on the scope of 
recoverable assessment costs. CERCLA provides that trustee officials 
may only recover ``reasonable'' assessment costs. CERCLA sec. 
107(f)(1). The Department's regulations include a definition of 
``reasonable cost.'' See 43 CFR 11.14(ee). Among other things, this 
definition requires that the anticipated cost of the assessment be 
expected to be less than the anticipated damage amount. Some commenters 
have stated that this definition should be revised so that the 
reasonableness of assessment costs is determined by comparing the cost 
of each component of the assessment to the anticipated damages to be 
determined by that component. NOAA's proposed OPA rule defines 
``reasonable cost of an assessment'' as those costs incurred in 
performing an assessment in accordance with the OPA rule. 59 FR 1169. 
The Department solicits comment on whether any revision of its 
definition of ``reasonable cost'' is appropriate.
    The Department's regulations provide that trustee officials may 
recover the ``reasonable and necessary'' costs of an assessment. See 43 
CFR 11.15(a)(3)(ii), as amended by 59 FR 14281. Some commenters have 
questioned whether this provision would require trustee officials to 
demonstrate not only that their assessment costs were reasonable but 
also that they were necessary. These commenters noted that CERCLA 
merely requires trustee officials to demonstrate that their assessment 
costs were reasonable.
    The reference to ``necessary'' assessment costs was not intended to 
require trustee officials to make an additional demonstration beyond 
that required by CERCLA. Therefore, the Department is considering 
deleting the reference to ``necessary'' assessment costs.
    The Department's regulations provide examples of recoverable 
assessment costs. See 43 CFR 11.15(a)(3)(ii), as amended by 59 FR 
14281. Some commenters have suggested that the regulations be amended 
to include a list of specific practices that would render assessment 
costs unreasonable. The Department questions whether addition of such a 
list would be workable or necessary.
    Several commenters questioned whether attorneys' fees were 
recoverable assessment costs. The Department believes that trustee 
officials will generally need the assistance of an interdisciplinary 
team of experts when performing natural resource damage assessments. 
The regulations do not restrict recoverable assessment costs to the 
expenses of particular types of professionals. The Department's 
regulations provide that recoverable assessment costs are ``limited to 
those costs incurred or anticipated by the authorized official for, and 
specifically allocable to, site-specific efforts taken in the 
assessment of damages.'' 43 CFR 11.60(d)(2). Therefore, if attorneys 
are involved in work specifically allocable to an assessment, the 
resulting attorneys' fees are recoverable as assessment costs under the 
regulations. The Department solicits comment on whether additional 
guidance on the recoverability of attorneys' fees is warranted.

B. Injury

    Some commenters have indicated that the injury definitions 
contained in the Department's regulations should be relaxed. Several 
commenters thought that trustee officials should be allowed to document 
injury by measuring the mere presence of the oil or hazardous substance 
in a natural resource. Other commenters have felt that the Department 
should allow injury to be documented through a risk analysis.
    On the other hand, some commenters have advocated the development 
of more restrictive injury definitions. Several commenters have 
contended that trustee officials should be required to link the 
specific substance found in a natural resource to that of the discharge 
or release in question. Other commenters have suggested that injuries 
should be limited to lost public uses of the natural resources.
    The regulations establish acceptance criteria for the development 
of biological injury definitions. 43 CFR 11.62(f)(2). Some commenters 
have stated that these criteria should be applied not only when a new 
injury definition is developed but also each time trustee officials 
document incident-specific injuries under existing injury definitions. 
Others felt that the acceptance criteria should be applied to each 
hazardous substance for which a particular biological injury definition 
was to apply.
    NOAA has proposed standards for determining injury under OPA that 
differ from those in the Department's regulations. See 59 FR 1178-1180.
    The Department intends to carefully examine the type B standards 
and methods for determining injury during this review. The Department 
encourages commenters to provide suggestions on injury determination 
and quantification.

C. Economics

1. Compensable Value
    Several commenters sought clarification on the economic values that 
are included in compensable value. Some commenters questioned when lost 
economic rent constitutes a compensable value. The Department's 
regulations provide that compensable value includes ``any economic rent 
accruing to a private party because the Federal or State agency or 
Indian tribe does not charge a fee or price for the use of the 
resources.'' 43 CFR 11.83(c)(1), as amended by 59 FR 14286. The 
Department's regulations also provide that compensable value includes 
changes in consumer surplus. Some commenters requested clarification of 
what constituted consumer surplus. The Department solicits comment on 
whether the regulations should provide additional guidance on the 
assessment of damages for lost economic rent and consumer surplus.
    A couple of commenters stated that compensable value should include 
not only the value of services lost to humans but also the value of 
services lost to other resources as a result of the injuries. Under the 
Department's regulations, trustee officials may consider not only the 
reduction in services to humans but also the reduction in services to 
other resources when selecting appropriate restoration, rehabilitation, 
replacement, and/or acquisition measures and estimating their costs. 
However, compensable value may be calculated only for the resource 
services lost to the public pending completion of restoration, 
rehabilitation, replacement, and/or acquisition of equivalent 
resources. See 43 CFR 11.83(c)(1), as amended by 59 FR 14286. The 
Department notes that compensable value does account indirectly for 
certain services lost to other resources. For example, compensable 
value for lost fishing opportunities may reflect the results of food 
web losses. If commenters think that additional values should be 
included in compensable value, they should specify the values of 
interest, explain the legal basis for including such values, and 
provide specific suggestions on how those values should be measured.
    The Department's regulations provide that in assessments where the 
scope of economic analysis is at the State level, only the compensable 
value to the State should be counted. 43 CFR 11.84(h)(3), as amended by 
59 FR 14287. Several commenters suggested that this provision be 
revised to allow State trustee officials to assess and recover 
compensable value for all individuals, not just those within the State. 
The Department solicits comment on the appropriate scope of economic 
analysis for all trustee officials.
2. Guidance on Methodologies
    There were numerous requests for additional guidance on 
implementation of the cost-estimating and valuation methodologies 
listed in the regulations. With regard to cost-estimating 
methodologies, some commenters have stated that the guidance provided 
on the incorporation of uncertainty into cost estimates is inadequate. 
See 43 CFR Sec. 11.84(d), as amended by 59 FR 14286-87. Other 
commenters requested additional guidance on selection and use of cost-
estimating methodologies.
    With regard to valuation methodologies, commenters raised concerns 
about the possibility of double counting if a hedonic pricing 
methodology is used. One commenter noted that the regulations state, 
``When regional travel cost models exist, they may be used if 
appropriate.'' 43 CFR 11.83(c)(2)(iv), as amended by 59 FR 14286. This 
commenter stated that this statement incorrectly implied that regional 
cost models were more appropriate than other models. Another commenter 
stated that use of the travel cost methodology should not be allowed 
because the results of a travel cost model can be skewed by the actions 
of one unusually avid traveler.
    The Department solicits comment on the need for and possible 
content of guidance on implementation of cost-estimating methodologies. 
The Department also solicits comment on the need for and possible 
content of guidance on implementation of methodologies for valuing lost 
use values. Commenters should restrict their remarks to the calculation 
of lost use values, because, as noted above, the Department is 
addressing the estimation of lost nonuse values in a separate 
rulemaking. See 59 FR 23097.
3. Willingness to Accept
    Several commenters suggested that trustee officials be allowed to 
calculate compensable value by estimating the minimum amount of money 
an individual would require once an injury occurred in order to be as 
well off as before the injury occurred (willingness to accept). The 
Department agrees that, since natural resources are held in trust for 
the public, willingness to accept is the correct theoretical measure of 
compensable value. However, because of the practical difficulties 
entailed in reliably measuring willingness to accept, the Department's 
regulations require the use of methodologies that measure the amount of 
money an individual would be willing to pay to prevent a natural 
resource injury (willingness to pay). 43 CFR 11.83(c)(2), as amended by 
59 FR 14286. The Department solicits comment on whether reliable 
methods exist for measuring willingness to accept. The Department also 
solicits comment on the conditions under which willingness to accept 
rather than willingness to pay would, in theory, result in 
significantly different estimates of compensable value.
4. Discount Rate
    The Department's regulations provide that trustee officials should 
discount the value of future costs and losses using the discount rate 
specified in the Office of Management and Budget Circular A-94 (OMB 
Circular A-94), dated March 27, 1972, which was ten percent. 43 CFR 
11.84(e)(2). OMB Circular A-94 has been revised. The current version, 
dated October 29, 1992, indicates that the discount rate for public 
investment is 7 percent.
    The Department is soliciting comment on whether use of a seven 
percent discount rate (the current value in Circular A-94) is 
appropriate or whether trustee officials should be allowed to use 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 use a discount rate 
based on the U.S. Treasury borrowing rate on marketable securities with 
maturities comparable to the period over which future losses will 
occur. Such an approach would be consistent with that proposed by NOAA 
under OPA. See 59 FR 1184. Information on U.S. Treasury borrowing rates 
on marketable securities is provided in Appendix C of OMB Circular A-
94.
5. Cost-Effectiveness
    The Department's regulations define ``cost-effectiveness'' to mean 
that ``when two or more activities provide the same or a similar level 
of benefits, the least costly activity providing that level of benefits 
will be selected.'' 43 CFR Sec. 11.14(j). Commenters have expressed 
confusion over the difference between cost effectiveness and 
maximization of net benefits. Consideration of cost effectiveness 
involves comparing activities that provide the same or a similar level 
of benefits. In contrast, consideration of net benefits can be used to 
compare activities that provide substantially different levels of 
benefits.
    Another commenter stated that the definition of ``cost-
effectiveness'' should be changed to delete the reference to 
``similar'' levels of benefits, in order to ensure full restoration, 
rehabilitation, replacement, and/or acquisition of equivalent 
resources.
    Use of the phrase ``same or similar'' was not intended to force 
trustee officials into using methods that produce lower benefits. 
Instead, the term merely reflects the fact that in the damage 
assessment context trustee officials will often be comparing methods 
that do not produce exactly the same benefits.
    The Department solicits comment on whether additional clarification 
is warranted.

D. Legal Topics

1. Judicial Review
    One significant area of discussion has been judicial review of 
damage assessments. CERCLA provides that any determination or 
assessment of damages performed ``in accordance with'' the natural 
resource damage assessment regulations ``shall have the force and 
effect of a rebuttable presumption on behalf of the trustee.'' CERCLA 
sec. 107(f)(2)(C). This provision is incorporated into the Department's 
regulations without further clarification. See 43 CFR Sec. 11.91(c). 
Commenters have asked the Department to define the term ``rebuttable 
presumption'' and clarify when and to which aspects of the assessment 
the rebuttable presumption applies. Some commenters have questioned 
whether the phrase ``in accordance with'' the regulations allows 
trustee officials to obtain a rebuttable presumption for any portion of 
an assessment that complies with the regulations or whether it 
restricts the rebuttable presumption to those assessments that follow 
all portions of the regulations.
    The Department's regulations provide both an administrative process 
for development and review of documentation as well as a range of 
alternative methodologies for the actual determination of injuries and 
damages. The Department believes that in order to obtain a rebuttable 
presumption, a trustee official must follow the entire administrative 
process set forth in the regulations. If the trustee official has 
followed the administrative process, the rebuttable presumption 
attaches to those components of the damage claim that were calculated 
through the appropriate use of any of the methodologies described in 
the regulations. However, trustee officials are not required to use all 
of the listed methodologies in order to obtain a rebuttable 
presumption. The Department solicits comment on this interpretation and 
on whether additional clarification of the effect of the rebuttable 
presumption is warranted.
    There have been comments about whether judicial review of an 
assessment should be limited to an administrative record. Under NOAA's 
proposed OPA rule, judicial review of assessment costs and estimated 
costs of restoration, rehabilitation, replacement, and/or acquisition 
of equivalent resources would be conducted on an administrative record. 
59 FR 1185. The Department solicits comment on whether a similar 
provision should be included in its regulations. The Department also 
solicits comment on whether judicial review of compensable value should 
be conducted on an administrative record.
2. Effect of Amendments
    Commenters have expressed confusion over the applicability of 
amendments of the natural resource damage assessment regulations to 
ongoing damage assessments that were started before the amendments 
became effective. The Department solicits comment on whether it should 
clarify that trustee officials are entitled to a rebuttable presumption 
so long as their assessments are in accordance with the regulations as 
they were in effect at the time that the assessments began.
3. Limits of Liability
    Some commenters have sought clarification of various statutory 
limitations on liability, including the ceilings set forth in section 
107(c) of CERCLA and the provision in section 107(f)(1) that excludes 
natural resource damages if those damages and the release that caused 
those damages occurred wholly before the enactment of CERCLA. The 
Department's regulations incorporate the statutory limitations on 
liability but do not provide any clarification of those limitations. 43 
CFR 11.15(b) and 11.24(b)(1). The Department will consider the 
development of additional guidance if commenters identify specific 
areas of concern.
4. Double Recovery
    Some commenters have sought clarification of the prohibition 
against ``double recovery'' of damages contained in section 107(f)(1) 
of CERCLA. The Department's regulations incorporate this prohibition. 
43 CFR Secs. 11.15(d) and 11.84(c). Double recovery refers to the 
recovery of two or more damage amounts to restore, rehabilitate, 
replace, and/or acquire the equivalent of the same injured resource or 
lost service or to compensate for the same lost public value. The 
Department will consider the development of additional guidance if 
commenters identify specific areas of concern.
5. Threatened Releases and Discharges
    Another area of discussion has been the recovery of natural 
resource damages caused by the threat of a release or discharge. 
Section 107(a)(4) of CERCLA refers to liability for ``a release or a 
threatened release.'' However, section 107(a)(4)(C) refers to damages 
for injury to, destruction of, or loss of natural resources ``resulting 
from such a release.'' Also, section 301(c) of CERCLA authorizes the 
Department to develop regulations for assessment of ``damages for 
injury to, destruction of, or loss of natural resources resulting from 
a release of oil or a hazardous substance.''
    The Department's regulations address only damages resulting from an 
actual release or discharge. NOAA's proposed rule, relying on section 
1002(a) of OPA, would allow for the assessment of diminished use of a 
resource resulting from the threat of a discharge. 59 FR 1169. The 
Department solicits comment on whether CERCLA allows for recovery of 
damages resulting from a threatened release and whether the 
Department's regulations should be revised to allow for the assessment 
of damages resulting from a threatened release or discharge. The 
Department also solicits examples of the types of damages that might be 
assessed in the case of a threatened discharge or release.
6. Archaeological and Cultural Resources
    Several commenters have questioned whether CERCLA authorizes the 
recovery of damages for injury of archaeological and cultural 
resources. The Department believes that ``archaeological'' and 
``cultural'' resources do not constitute ``natural resources'' as 
defined by CERCLA. However, the Department's regulations do permit 
trustee officials to include the loss of archaeological and cultural 
services provided by a natural resource in a natural resource damage 
assessment.
7. Unused Damage Awards
    Some commenters have suggested that the statutory requirement that 
damages be spent to restore, rehabilitate, replace, and/or acquire the 
equivalent of the injured resources dictates that any sums not used in 
this manner be returned to the PRPs. The Department's regulations 
provide that collected damages may only be used to fund actions 
described in the Restoration Plan and do not address the disposition of 
any ``excess'' funds. See 43 CFR 11.92(c).
    The Department notes that CERCLA requires all collected damages to 
be spent on restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources, which includes mitigation of the 
public loss of services during the recovery period. Therefore, all 
funds should be used for restoration, rehabilitation, replacement, and/
or acquisition of equivalent resources.
8. NEPA
    Several commenters sought clarification of whether the National 
Environmental Policy Act (NEPA) applies to assessments or restorations 
performed in accordance with the regulations. The Department does not 
anticipate addressing the applicability of NEPA in the damage 
assessment regulations. However, the Department believes that the 
information needed for the Restoration and Compensation Determination 
Plan should fulfill the requirements of NEPA, with equivalent 
opportunities for public input. Thus if NEPA were applicable to an 
assessment or restoration activity, the Department believes that 
appropriate and timely information would be available.
9. Consideration of Benefits
    Some commenters stated that the Department's regulations should be 
revised to require trustee officials to offset any damages resulting 
from the discharge or release with any benefits produced by the 
discharge or release. The Department solicits additional comment.
10. Tribal Trustees
    A number of commenters have sought to ensure that the interests of 
tribal entities are adequately addressed in the Department's 
regulations. A number of commenters expressed concern over the 
treatment of tribal values, including the values associated with tribal 
cultural resources. As noted above, the Department believes that 
``cultural'' resources, including tribal cultural resources, do not 
constitute ``natural resources'' as defined by CERCLA. However, the 
Department's regulations do permit trustee officials to include the 
loss of cultural services provided by a natural resource in a natural 
resource damage assessment.
    Other commenters suggested that the Department's fiduciary 
responsibility to Indian tribes extends to financing natural resource 
damage assessments involving tribal resources. Although the Department 
exercises a fiduciary responsibility as trustee for Indian resources, 
the Department believes that discussion of funding mechanisms for 
damage assessment activities conducted by Indian tribes is not 
appropriate for this rulemaking, except as addressed in the law and 
regulation regarding the liability of PRPs and use of recovered sums.
    One commenter stated that CERCLA grants a rebuttable presumption to 
assessments performed by tribal trustee officials. This commenter 
stated that when CERCLA was amended by the Superfund Amendments and 
Reauthorization Act (SARA), Congress intended to grant tribes the same 
authority as States in the area of natural resource trustee activities. 
The commenter further noted that under established case law concerning 
the Federal government's fiduciary responsibility to tribes, any 
ambiguity in the statute concerning tribes' right to the rebuttable 
presumption must be construed in favor of the tribes.
    The Department notes that the regulations were revised in 1988 to 
reflect the SARA amendment to CERCLA granting a rebuttable presumption 
to natural resource damage assessments performed by State trustee 
officials. See 43 CFR 11.91(c). At that time and in subsequent Federal 
Register notices, the Department has taken the position that SARA did 
not extend the rebuttable presumption to assessments performed by 
tribal trustee officials and that granting a rebuttable presumption to 
tribes will require a legislative change.

E. Restoration, Rehabilitation, Replacement, and/or Acquisition of 
Equivalent Resources

1. Types of Alternatives
    Some commenters have suggested that the regulations should 
encourage trustee officials to select restoration and rehabilitation 
alternatives rather than replacement or acquisition alternatives. The 
Department's regulations do not indicate a preference for any 
particular type of restoration, rehabilitation, replacement, or 
acquisition alternative. The Department solicits comment on whether it 
has the authority, and whether it is appropriate, to develop and 
require adherence to a priority system for selecting a restoration, 
rehabilitation, replacement, and/or acquisition alternative.
    The Department's regulations provide that Federal trustee officials 
may not select an alternative that requires acquisition of land for 
Federal management, unless restoration, rehabilitation and replacement 
are not possible. 43 CFR 11.82(e), as amended by 59 FR 14285. Some 
commenters supported this restriction and requested that it be extended 
to State and tribal natural resource trustees. Other commenters thought 
that the restriction should be eliminated altogether. The Department is 
interested in comments on this issue.
    Some commenters stated that the regulations should clearly 
authorize trustee officials to choose a natural recovery alternative 
when selecting a restoration, rehabilitation, replacement, and/or 
acquisition alternative. The Department believes that the regulations 
already authorize trustee officials to select a natural recovery 
alternative when appropriate. The Department's regulations explicitly 
require trustee officials to consider a ``No Action-Natural Recovery'' 
alternative. 43 CFR 11.82(c)(2), as amended by 59 FR 14284.
2. Guidance on Selection of an Alternative
    Several commenters have requested guidance on selection of a 
restoration, rehabilitation, replacement, and/or acquisition 
alternative. In particular, some commenters thought that the Department 
should provide guidance on how trustee officials could maximize the 
opportunities for natural recovery.
    The Department's regulations already provide some guidance on the 
selection of a restoration, rehabilitation, replacement, and/or 
acquisition alternative. See 43 CFR 11.82, as amended by 59 FR 14284-
85. The Department's regulations require trustee officials to evaluate 
a reasonable number of restoration, rehabilitation, replacement, and/or 
acquisition alternatives, including natural recovery. The Department's 
regulations also provide a number of factors that trustee officials 
must consider when selecting an alternative. NOAA's proposed OPA rule 
includes a similar list of factors and contains guidance on determining 
when to select an alternative that relies on natural recovery. 59 FR 
1181. NOAA has developed a draft guidance document on restoration 
activities. 59 FR 1065.
    The Department notes that developing guidance requires balancing 
increased predictability against reduced flexibility to respond to the 
unique features of the broad range of potential natural resource damage 
cases. Thus, there is a limit to the level of specificity that can be 
appropriately provided in the regulations. With this in mind, the 
Department solicits comment on specific aspects of the selection 
process that warrant additional guidance. The Department solicits 
comment on whether the guidance should be incorporated in the 
regulations or in a separate guidance document. The Department also 
intends to consider the appropriateness of offering guidance on 
available restoration and rehabilitation techniques and would 
appreciate information on appropriate case studies demonstrating 
successful application of restoration and rehabilitation measures.
3. Specific Selection Factors
    Under the Department's regulations, one of the factors that trustee 
officials must consider when selecting a restoration, rehabilitation, 
replacement, and/or acquisition alternative is the relationship between 
estimated costs and estimated benefits. 43 CFR 11.82(d)(2), as amended 
by 59 FR 14285. Total damages will depend on the sum of compensable 
value and restoration, rehabilitation, replacement, and/or acquisition 
costs. Often there will be tradeoffs between compensable value and 
restoration, rehabilitation, replacement, and/or acquisition costs. For 
example, a fast-paced restoration, rehabilitation, replacement, and/or 
acquisition alternative may result in a lower level of interim lost 
use, and thus reduce associated compensable values. However, 
implementation of such an alternative may result in significantly 
higher restoration, rehabilitation, replacement, and/or acquisition 
costs. In some cases, there may be sufficient data to demonstrate that 
some restoration, rehabilitation, replacement, and/or acquisition 
alternatives result in substantially lower total damages than others.
    NOAA has solicited comment on whether, under OPA, trustee officials 
should be required to explain their rationale if they select a 
restoration, rehabilitation, replacement, and/or acquisition 
alternative that does not minimize total damages. 59 FR 1134. The 
Department solicits comment on whether a similar requirement should be 
added to the Department's regulations.
    A commenter suggested that socioeconomic effects of restoration, 
rehabilitation, replacement, and/or acquisition alternatives might be 
added to the list of factors that trustee officials are to consider in 
making their selection among alternatives. The Department's regulations 
provide that trustee officials may consider all relevant considerations 
when selecting a restoration, rehabilitation, replacement, and/or 
acquisition alternative. 43 CFR 11.82(d), as amended by 59 FR 14284-85. 
Therefore, trustee officials already have the ability to consider 
socioeconomic effects if relevant.
4. Services Versus Resources
    Several commenters expressed confusion over whether the Department 
intended restoration, rehabilitation, replacement, and/or acquisition 
of the equivalent to be measured in terms of the services provided by a 
resource, the resource itself, or both. Several commenters noted 
apparent inconsistencies in the regulations.
    Some commenters stated that restoration, rehabilitation, 
replacement, and/or acquisition of the equivalent should be strictly 
limited to the services provided by the resource. For example, some 
commenters believed that if an injured stream was used for fishing and 
nothing else, PRPs should only be liable for the cost of cleaning that 
stream to the point where fishing opportunities are returned to 
baseline. These commenters thought that requiring restoration, 
rehabilitation, replacement, and/or acquisition of the equivalent of 
both services and the resource itself would create economic 
inefficiencies and would constitute double counting.
    Other commenters indicated that measuring restoration, 
rehabilitation, replacement, and/or acquisition of the equivalent in 
terms of services only would fail to fully compensate the public. These 
commenters expressed concern that using services alone as a measurement 
could prevent trustee officials from attaining complete restoration, 
rehabilitation, replacement, and/or acquisition of the equivalent.
    The Department intends to carefully review the use of the terms 
``resources'' and ``services'' in this biennial review. The Department 
solicits comment on whether restoration, rehabilitation, replacement, 
and/or acquisition should be measured in terms of services, resources, 
or both. The Department also solicits comment on the definition of 
``services'' and whether it should be modified or additional concepts 
should be developed or defined to further clarify this issue.
5. Committed Use
    One commenter stated that the concept of committed use should not 
apply to restoration, rehabilitation, replacement, and/or acquisition 
of equivalent resources, in the sense that restoration of a resource or 
service to a level of environmental quality beyond that needed to 
support existing committed uses should not be required.
    ``Committed use'' is defined as a current or planned public use for 
which there is a documented commitment established. 43 CFR 11.14(h). 
Under the Department's regulations, the concept of committed use 
applies only to the calculation of compensable value and does not 
affect the appropriate level of restoration, rehabilitation, 
replacement, and/or acquisition of equivalent resources. See 43 CFR 
11.84(b)(2).
    The committed use requirement was designed to prevent trustee 
officials from assessing compensable value for purely speculative uses 
of a resource. When measuring restoration, rehabilitation, replacement, 
and/or acquisition, the guiding concept is whether baseline conditions 
have been reestablished, irrespective of consideration of compensable 
values. Failure to account for potential services when measuring 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources could violate Ohio v. Interior, which stated:

    Our decision to uphold the ``committed use'' requirement is 
premised on our interpretation of the regulation to mean that a 
trustee is not prohibited from recovering costs of restoring or 
replacing a natural resource even when that resource has no 
documented ``committed use.'' 880 F.2d at 462.
6. Implementation of an Alternative
    A commenter said there should be provisions for starting 
restoration, rehabilitation, replacement, and/or acquisition activities 
while the damage assessment is still under way. The Department's 
regulations provide for implementation of emergency restorations in 
appropriate circumstances, generally limited to actions necessary to 
abate an emergency situation. 43 CFR 11.21. Other than for emergency 
restorations, starting restoration, rehabilitation, replacement, and/or 
acquisition activities while damage assessment is underway, while not 
precluded, is not expressly discussed in the regulations. However, 
trustee officials may not expend funds received for restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
prior to developing a Restoration Plan and making it available for 
public comment and review. 43 CFR 11.92(c); CERCLA sec. 111(i).
    The assessment process is designed, in part, to ensure that 
appropriate and efficient measures to accomplish restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
are adopted. Unless there is a compelling reason for early initiation 
of restoration, rehabilitation, replacement, and/or acquisition 
activities, the Department believes that the administrative process 
established under the regulations should be followed. This approach is 
similar to that provided under other existing legislation and 
regulation (e.g., NEPA and the Administrative Procedure Act) whereby 
there are general and specific constraints on taking certain actions or 
making irrevocable decisions or irretrievable commitments of resources 
prior to completion of appropriate planning and public involvement. 
However, if initiation of certain restoration, rehabilitation, 
replacement, and/or acquisition actions would not constrain 
decisionmaking following completion of the assessment process, and if 
the public was given adequate opportunity to comment on the proposed 
actions consistent with CERCLA section 111(i), such actions could be 
appropriate.
    Commenters have also sought clarification of 43 CFR 11.21 (b) and 
(c), which provide that a trustee official may undertake emergency 
restoration actions ``consistent with its existing authority.'' 
Existing 43 CFR 11.21 was developed in recognition of section 111(i) of 
CERCLA, which provides that trustee officials need not develop a 
restoration plan subject to public comment prior to taking emergency 
actions. The Department does not believe that section 111(i) of CERCLA 
provides trustee agencies with independent authority to take action 
they would not otherwise have authority to take. The Department 
solicits comment on whether additional clarification is warranted.
    One commenter asked the Department to recognize the right of co-
trustees to spend collected damages on implementation of different 
Restoration Plans. While the Department's regulations require trustee 
coordination and encourage joint development and implementation of 
restoration, rehabilitation, replacement, and/or acquisition actions, 
nothing in the regulations prohibits co-trustees from implementing 
different Restoration Plans. The Department solicits further comment on 
this issue.
    A few commenters requested guidance on determining when 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources is complete. Some commenters suggested that 
trustee officials provide PRPs with a certification when restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
is essentially completed so that PRPs will not remain liable 
indefinitely.
    The Department's regulations provide that the recovery period is 
the time until baseline conditions have been reestablished. 43 CFR 
11.73(a), as amended by 59 FR 14283. It is up to the trustee officials, 
and in the case of settlements the joint agreement of the trustee 
officials and the PRPs, whether a site-specific definition of 
completeness should be included in the Restoration Plan. The Department 
has not considered it necessary to require trustee officials to provide 
PRPs with a certification when restoration, rehabilitation, 
replacement, and/or acquisition of equivalent resources is essentially 
completed. The extent of a PRP's continuing liability after damages 
have been recovered by the trustee officials depends on the terms of 
the judgment or settlement agreement.

    Dated: September 21, 1994.
Bonnie R. Cohen,
Assistant Secretary--Policy, Management, and Budget.
[FR Doc. 94-25839 Filed 10-18-94; 8:45 am]
BILLING CODE 4310-RG-P