[Federal Register Volume 59, Number 235 (Thursday, December 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30108]


[[Page Unknown]]

[Federal Register: December 8, 1994]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 11

RIN 1090-AA23

 

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 revise the existing 
type A procedure for assessing natural resource damages in coastal and 
marine environments in compliance with a court order and a statutory 
biennial review requirement. The proposed procedure incorporates a 
computer model called the Natural Resource Damage Assessment Model for 
Coastal and Marine Environments (NRDAM/CME) Version 2.2, which would 
replace the NRDAM/CME Version 1.2 that is currently incorporated by 
reference into the regulations.

DATES: Comments will be accepted through February 6, 1995.

ADDRESSES: Comments should be sent in duplicate to the Office of 
Environmental Policy and Compliance, ATTN: NRDA Rule-CME, 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/
CME Version 2.2 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 Data
    B. Regulatory Status of Type A Procedures
IV. NRDAM/CME Version 2.2
    A. Overview
    B. User-Supplied Data Inputs
    C. Geographic Information System
    D. Submodels
V. Conditions Regarding Use of the NRDAM/CME Version 2.2
    A. Primary Conditions
    B. Secondary Conditions
VI. Response to Comments
    A. General
    B. Physical Fates
    C. Biological Effects
    D. Restoration
    E. Economic Issues
    F. Tribal Issues

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 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). The 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 these regulations receive a rebuttable 
presumption in court. CERCLA sec. 107(f)(2)(C). The regulations must be 
reviewed, and revised as appropriate, every two years. CERCLA sec. 
301(c)(3). 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). 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.

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); 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 as well as 
technical procedures 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 
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. However, trustee officials have the authority 
to settle their damage claims at any time during the administrative 
process.
    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 (NRDAM/CME) Version 1.2, to perform Injury 
Determination, Quantification, and Damage Determination for minor 
discharges or releases in coastal and marine environments. This 
proposed rule would revise the type A procedure for coastal and marine 
environments and replace the NRDAM/CME Version 1.2 with the NRDAM/CME 
Version 2.2. Until a final rule revising the type A procedure for 
coastal and marine environments is promulgated, the NRDAM/CME Version 
1.2 remains the version incorporated by reference into the regulations. 
For more information on use of a type A procedure during the Assessment 
Phase, see subpart D of 43 CFR part 11. Also, the Department recently 
published a proposed rule that would establish an additional type A 
procedure for Great Lakes environments. 59 FR 40319 (Aug. 8, 1994).
    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 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 
requirements 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 March 20, 1987, the Department published a final rule 
establishing a type A procedure for coastal and marine environments 
that incorporated the NRDAM/CME Version 1.1. 52 FR 9041. On March 25, 
1988, the Department published technical corrections to the NRDAM/CME 
Version 1.1, replacing it with NRDAM/CME Version 1.2. 53 FR 9769. On 
February 1, 1989, the Department published an advance notice of 
proposed rulemaking announcing the commencement of the statutorily 
required biennial review of the type A procedure for coastal and marine 
environments. 54 FR 5093. The advance notice solicited comment on 
whether and how the type A procedure should be revised to reflect 
experience with use of the NRDAM/CME Version 1.2.
    On July 14, 1989, the U.S. Court of Appeals for the District of 
Columbia Circuit issued two decisions that affected the biennial review 
of the type A procedure for coastal and marine 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 also remanded the NRDAM/CME Version 1.2, 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 Version 1.2 calculates damages based solely on lost public 
use of the injured resources.
    On September 22, 1989, the Department published an advance notice 
of proposed rulemaking announcing its intent to revise the type A 
procedure for coastal and marine environments in compliance with Ohio 
v. Interior and Colorado v. Interior during the ongoing biennial 
review. 54 FR 39013 The Department solicited comment on means of 
incorporating restoration costs and all reliably calculated lost public 
economic values into the revised NRDAM/CME. Id.

D. Related Rulemakings

    There are several other ongoing natural resource damage assessment 
rulemakings.
1. CERCLA
    On June 2, 1988, the Department published an advance notice of 
proposed rulemaking soliciting comment on the development of a type A 
procedure for Great Lakes environments. 53 FR 20143. On September 22, 
1989, the Department announced its intent to modify the development of 
the type A procedure for Great Lakes environments to conform with Ohio 
v. Interior and Colorado v. Interior. 54 FR 39015. The Department 
published a notice of proposed rulemaking for the type A procedure for 
Great Lakes environments on August 8, 1994. 59 FR 40319. 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 the proposed 
NRDAM/GLE was used to develop the NRDAM/CME Version 2.2.
    The August 8, 1994, Federal Register notice also contained two 
proposed amendments to the natural resource damage assessment 
regulations that would affect all type A procedures. The Department 
proposed 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. The comment period on the August 8, 1994, proposed rule has 
been extended through February 6, 1995. 59 FR 54877 (Nov. 2, 1994).
    The Department plans to develop additional type A procedures, as 
appropriate, in future rulemakings. 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.
    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 closed on October 7, 1994. See 59 FR 32175 
(June 22, 1994).
    CERCLA mandates biennial review, and revision as appropriate, of 
the Department's natural resource damage assessment regulations. On 
October 19, 1994, the Department published an advance notice of 
proposed rulemaking to begin the biennial review of the administrative 
process and type B procedures. 59 FR 52749.
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. The Department understands that NOAA is 
likely to allow for use of the revised NRDAM/CME under its OPA 
regulations after the Department publishes a final rule. 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/CME Version 2.2 
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 simply 
revise one of the procedures available for use during the Assessment 
Phase. The proposed procedure would be available only for oil 
discharges or hazardous substance releases that occur in coastal or 
marine environments.

A. Preassessment Phase

    During the Preassessment Phase of an assessment incorporating use 
of the proposed NRDAM/CME Version 2.2, 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/CME 
Version 2.2 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/CME Version 2.2, as well as the 
incident-specific information they intend to use as data inputs to the 
NRDAM/CME Version 2.2. 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/CME Version 2.2
    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/CME Version 
2.2. Under the proposed rule, whenever a discharge or release occurred 
in a coastal or marine environment, trustee officials would determine 
if the conditions were met. A coastal or marine environment is defined 
as any area represented by the geographic data contained in the NRDAM/
CME Version 2.2. The geographic scope of the NRDAM/CME Version 2.2 is 
discussed in Section IV.C of this preamble. Trustee officials would 
include in the Assessment Plan their determinations of whether the 
conditions regarding use of the NRDAM/CME Version 2.2 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 needed 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 Sec. 11.33(b) of the proposed rule, the conditions regarding 
use of the NRDAM/CME Version 2.2 fall into two categories: Primary 
conditions and secondary conditions. The absence of any primary 
condition indicates that use of the NRDAM/CME Version 2.2 is 
inappropriate. The absence of any secondary condition does not indicate 
that use of the NRDAM/CME Version 2.2 is inappropriate but does 
indicate that the NRDAM/CME Version 2.2 might not address all 
significant 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/CME 
Version 2.2 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 Version 1.2 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 Version 1.2, 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/CME Version 2.2, type B 
procedures, or a combination, and obtain a rebuttable presumption. Use 
of combined type A and type B procedures would be subject to the 
limitations discussed in Section II.B.2 of this preamble. 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/CME Version 2.2, 
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/CME Version 
2.2 was appropriate, whenever a PRP submitted a written request for use 
of type B procedures and advanced all reasonable costs of using type B 
procedures within a timeframe acceptable to the trustee officials.
    Section V of this preamble contains additional information on the 
conditions regarding use of the NRDAM/CME Version 2.2.
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 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.
    In the August 8, 1994, Federal Register notice concerning the type 
A procedure for Great Lakes environments, the Department proposed 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. 59 FR 
40333. The August 8, 1994, Federal Register notice contained new 
proposed standards for determining when to use type B procedures to 
supplement damages calculated by the NRDAM/GLE. Today's proposed rule 
would establish similar standards for determining when to use type B 
procedures to supplement damages calculated by the NRDAM/CME Version 
2.2.
    If all primary conditions regarding use of the NRDAM/CME Version 
2.2 were met but one or more secondary conditions were not met, then 
the NRDAM/CME Version 2.2 could still be used but might not address all 
significant types of natural resource injuries and lost public economic 
values. In such cases, trustee officials would have the discretion to 
use the NRDAM/CME Version 2.2 to calculate all damages. However, 
trustee officials would also have the option of using type B procedures 
to supplement the damages calculated by the NRDAM/CME Version 2.2 and 
could obtain a rebuttable presumption for both portions of the 
assessment. Specifically, trustee officials could 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/CME Version 
2.2 and use the NRDAM/CME Version 2.2 to calculate all other damages, 
provided there were no double recovery of damages.
    Trustee officials who used type B procedures in addition to the 
NRDAM/CME Version 2.2 would obtain a rebuttable presumption only if the 
type B procedures were used to supplement the damages calculated by the 
NRDAM/CME Version 2.2. Trustee officials could not selectively 
substitute specific categories of damages calculated by the NRDAM/CME 
Version 2.2 with damages calculated through use of type B procedures 
and retain the rebuttable presumption. However, trustee officials could 
calculate all damages through use of type B procedures, and obtain a 
rebuttable presumption, provided that the type B procedures were cost 
effective and could be performed at a reasonable cost. A trustee 
official's decision whether to use the NRDAM/CME Version 2.2, 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/CME Version 2.2 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/CME Version 2.2 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/CME Version 2.2 to calculate 
all other damages, provided there were no double recovery of damages.
    Trustee officials who used both the NRDAM/CME Version 2.2 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/CME Version 2.2, how they intended to apply the type B 
procedures, and how they intended to ensure no double recovery. During 
the Assessment Phase, the NRDAM/CME Version 2.2 would be applied in 
compliance with Sec. 11.41 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/CME Version 2.2 
and completing the type B procedures, trustee officials could prepare a 
single Report of Assessment detailing the results of both the NRDAM/CME 
Version 2.2 and the type B procedures.
3. User-Supplied Data Inputs
    If trustee officials decided to use the NRDAM/CME Version 2.2, the 
Assessment Plan would also document the incident-specific information 
that they intend to use as data inputs to the NRDAM/CME Version 2.2. 
Under the proposed rule, the NRDAM/CME Version 2.2 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/CME Version 
2.2.
    Section IV.B of this preamble contains additional information on 
user-supplied data inputs to the NRDAM/CME Version 2.2.

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/CME Version 2.2, 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/CME Version 2.2.
    The proposed NRDAM/CME Version 2.2 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/CME Version 2.2 performs Quantification through 
the Biological Effects Submodel. The NRDAM/CME Version 2.2 databases 
contain information about the baseline condition of natural resources 
in coastal and marine environments. The Biological Effects Submodel 
quantifies the change in baseline conditions as a result of the 
discharge or release.
    The proposed NRDAM/CME Version 2.2 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/CME Version 2.2 adds compensable values and restoration costs to 
produce a damage figure.
    Section IV.D of this preamble contains additional information on 
how the NRDAM/CME Version 2.2 performs Injury Determination, 
Quantification, and Damage Determination.

D. Post-Assessment Phase

    After using the NRDAM/CME Version 2.2, 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. These activities 
include preparation of a Report of Assessment. The proposed NRDAM/CME 
Version 2.2 provides a printed assessment report that summarizes the 
computations performed to derive the damage amount. 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/CME Version 2.2 and documentation of the 
incident-specific data inputs to the NRDAM/CME Version 2.2; and the 
printed assessment report from the NRDAM/CME Version 2.2.
    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/CME Version 2.2, 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/CME Version 2.2; and the cost of using the NRDAM/CME Version 2.2.
    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/CME 
Version 2.2, as well as the Preassessment Phase, Assessment Plan Phase, 
and Post-Assessment Phase requirements 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/CME Version 2.2 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 Data

    CERCLA mandates that the type A procedures constitute 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 data. 
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 
sec. 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/CME Version 2.2 incorporated 
by reference into the natural resource damage assessment regulations. 
Thus, once a revised type A procedure for coastal and marine 
environments is promulgated as a final rule, trustee officials will 
have to use the exact version of the NRDAM/CME incorporated into 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 coastal and marine 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 sec. 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 from the date of promulgation rather than in a particular 
natural resource damage case.
    For example, once the revised type A procedure for coastal and 
marine environments is promulgated as a final rule, a PRP in a natural 
resource damage case where the revised NRDAM/CME is used in accordance 
with the Department's regulations will not be able to challenge the 
revised NRDAM/CME submodels or databases. A PRP will only be allowed to 
challenge the trustee officials' decision to use the revised NRDAM/CME 
and the trustee officials' incident-specific data inputs to the revised 
NRDAM/CME. Federal and State trustee officials who comply with the 
standards governing use of the revised NRDAM/CME, as well as the 
Preassessment Phase, Assessment Plan Phase, and Post-Assessment Phase 
requirements set forth in the regulations, will obtain a rebuttable 
presumption of correctness for their decision to use the revised NRDAM/
CME and for their incident-specific data inputs. PRPs who wish to avoid 
being bound by the revised NRDAM/CME submodels and databases have the 
option of funding the performance of type B procedures.
    In the August 8, 1994, notice of proposed rulemaking concerning the 
type A procedure for Great Lakes environments, the Department has 
proposed to make explicit in the regulations the statutory limitation 
on judicial review of assessments incorporating type A procedures. 59 
FR 40337.

IV. NRDAM/CME Version 2.2

A. Overview

    The proposed NRDAM/CME Version 2.2 consists of integrated submodels 
and databases that calculate natural resource damages based on certain 
types of estimated restoration costs and economic values lost to the 
public pending reestablishment of baseline conditions. The proposed 
NRDAM/CME Version 2.2 is a complex computer model; however, it is 
designed for use by relatively untrained individuals. The proposed 
NRDAM/CME Version 2.2 is available on diskettes and can be used on most 
IBM-compatible personal computers.
    The proposed NRDAM/CME Version 2.2 was developed under contract to 
the Department by Applied Science Associates, Inc., Narragansett, Rhode 
Island, A.T. Kearney, Inc., Alexandria, Virginia, and HBRS, Inc., 
Madison, Wisconsin. Intensive efforts were made to ensure that the 
NRDAM/CME Version 2.2 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/CME Version 2.2 can be 
found in the six-volume ``CERCLA Type A Natural Resource Damage 
Assessment Model for Coastal and Marine Environments Technical 
Documentation,'' dated October 1994, prepared for the Department by 
Applied Science Associates, Inc., A.T. Kearney, Inc., and HBRS, Inc. 
(NRDAM/CME Version 2.2 technical document). Volume I of the NRDAM/CME 
Version 2.2 technical document discusses the content and derivation of 
the NRDAM/CME Version 2.2 submodels and databases. Volume II is a 
user's manual. Volume III is a compilation of the chemical and 
environmental databases used by the proposed NRDAM/CME Version 2.2. 
Volume IV contains the biological databases on the life histories, 
abundances, and trophic level production rates used by the proposed 
NRDAM/CME Version 2.2. Volume V is a compilation of the compensable 
values and restoration costs used by the NRDAM/CME Version 2.2. Volume 
VI is a listing of the active source code for the proposed NRDAM/CME 
Version 2.2. Under the proposed rule, the NRDAM/CME Version 2.2 and the 
NRDAM/CME Version 2.2 technical document would be incorporated by 
reference into the regulations.
    Computer diskettes containing the proposed NRDAM/CME Version 2.2 
and the NRDAM/CME Version 2.2 technical document can be obtained for 
review and comment from the address given at the beginning of this 
notice. The proposed NRDAM/CME Version 2.2 is available only on 3.5 
inch double- sided, high density diskettes. The model and databases are 
contained on four diskettes. Three companion location disks for the 
East Coast (including the Gulf of Mexico), West Coast, Alaska, Pacific 
Islands (including Hawaii), and the Caribbean provide the geographic 
data required by the NRDAM/CME Version 2.2. The NRDAM/CME Version 2.2 
technical document is available on two 3.5 inch double-sided, high 
density diskettes formatted under WordPerfect 5.1. The 
Department solicits comment on all aspects of the proposed NRDAM/CME 
Version 2.2, the proposed NRDAM/CME Version 2.2 technical document, and 
the proposed rule language concerning use of the NRDAM/CME Version 2.2.
    The proposed NRDAM/CME Version 2.2 is supplied with a menu-driven 
graphic display to assist users. The minimum computer configuration 
required to use the proposed NRDAM/CME Version 2.2 is:
     IBM-compatible personal computer using MS-
DOS 3.1 or higher;
     80386 processor or better with math co-processor;
     1.44 megabyte 3.5 inch floppy disk drive;
     640 kilobytes of RAM with 540 kilobytes available;
     Hard disk with 50 megabytes of available space;
     VGA monitor; and
     Microsoft-compatible mouse.
    For further information on installation of the proposed NRDAM/CME 
Version 2.2, see the NRDAM/CME Version 2.2 technical document, Volume 
II, Section 2.
    The Department has endeavored to assure that the proposed NRDAM/CME 
Version 2.2 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/CME Version 2.2 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 files may 
be found in the directories:


\NRDAMCME\LOC__DATA\...\CASES\*.DAT...............  (ASCII file)        
\NRDAMCME\LOC__DATA\...\MODELOUT\*.CLS............  (ASCII file)        
\NRDAMCME\LOC__DATA\...\CURRENTS\*.DIR............  (binary file)       
\NRDAMCME\LOC__DATA\...\WINDS\*.WND...............  (binary file)       
\NRDAMCME\LOC__DATA\...\RESPONSE\*.LRF............  (ASCII file)        
                                                                        

where ``* * *'' is the subdirectory location name corresponding to 
general geographic subdivision locations (e.g., E__COAST, W__COAST).

B. User-Supplied Data Inputs

    Most of the data used by the proposed NRDAM/CME Version 2.2 to 
determine injury and damages are included in the model databases. 
However, the proposed rule would require trustee officials to provide 
two categories of incident-specific data inputs to the proposed NRDAM/
CME Version 2.2. One category of data inputs would include information 
that trustee officials would be required to provide in order to use the 
proposed NRDAM/CME Version 2.2. 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 the water;
     Length of time over which the discharged oil or released 
hazardous substance entered the water;
     Date and time that the discharged oil or released 
hazardous substance began to enter the water;
     Latitude and longitude where the discharged oil or 
released hazardous substance entered the water;
     Wind velocity and direction during the 30-day period 
starting 24 hours before the discharged oil or released hazardous 
substance entered the water;
     Velocity and direction of background and tidal currents 
over the area affected by the discharge or release at the time the 
discharged oil or released hazardous substance entered the water;
     Time at which high tide occurred on the date that the 
discharged oil or released hazardous substance entered the water;
     Tidal range at the time and point where the discharged oil 
or released hazardous substance entered the water;
     Whether the tide in the area affected by the discharge or 
release is diurnal (i.e. completes one full cycle every day) or semi-
diurnal (i.e. completes two full cycles every day);
     Amount of the discharged oil or released hazardous 
substance that was removed from the water surface and shoreline during 
response actions and the location and time frame of the removal;
     Closures of boating areas, Federal public beaches, State 
(including municipal) public beaches, fisheries, shellfish harvest 
areas, furbearer hunting or trapping areas, and waterfowl hunting areas 
due to the discharge or release; and
     Gross National Product Implicit Price Deflator (base year 
1987) for the quarter in which the discharge or release occurred.
    Also, for discharges or releases in Alaska, the Department is 
proposing to require trustee officials to determine whether the 
proposed NRDAM/CME Version 2.2 should consider the effects of ice 
cover. If trustee officials determine that ice cover effects should be 
considered, the proposed NRDAM/CME Version 2.2 supplies data on average 
ice cover for the relevant time period and geographical area. The 
Department solicits comment on whether the NRDAM/CME Version 2.2 should 
always consider the effects of ice cover in Alaska.
    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 coastal or marine environments.
    The proposed rule provides that discharged oils and released 
hazardous substances must be identified by Chemical Abstract Service 
(CAS) Registry Number. Hazardous substances are assigned CAS numbers by 
the American Chemical Society, Chemical Abstract Service. The hazardous 
substances included in the NRDAM/CME Version 2.2, along with their CAS 
numbers, are listed in the NRDAM/CME Version 2.2 technical document, 
Volume III, Table III.2.1. Oils are divided into categories and each 
category is assigned a dummy CAS number. The oil categories are 
identified in the NRDAM/CME Version 2.2 technical document, Volume III, 
Table III.2.4. The Department solicits comment on whether trustee 
officials should be allowed to use the NRDAM/CME Version 2.2 for oils 
and hazardous substances not listed in Table III.2.1 or II.2.4 through 
selection of a proxy oil or hazardous substance. The Department further 
solicits comment on how appropriate proxies for oils and hazardous 
substances might be selected.
    If a mixture has been discharged or released, trustee officials 
must select one oil or one hazardous substance in the mixture. The 
volume used as input to the NRDAM/CME Version 2.2 would then be the 
quantity of the selected oil or hazardous substance contained in the 
mixture, rather than the volume of the entire mixture.
    The proposed NRDAM/CME Version 2.2 permits the user to supply data 
concerning the amount and duration of the discharge or release that 
identify two distinct stages of a spill event. When modelling such a 
spill event, the user specifies the amount of the oil or hazardous 
substance discharged or released during the first stage of the spill 
and specifies the length of time (in hours) over which the first stage 
occurs. The user also enters amount and duration data for the second 
stage of the spill. The model begins the duration period for the second 
stage of the spill upon completion of the first stage. Users may omit 
this staging feature by entering zeroes for the second stage of the 
spill event.
    Under the proposed rule, trustee officials would be required to 
specify a currents grid upon which background and tidal currents are 
characterized. The currents grid is defined by the northern- and 
southern-most latitude, and the eastern- and western-most longitude 
encompassing the area affected by the discharge or release. The 
proposed NRDAM/CME Version 2.2 subsequently establishes a grid of 100 
grid cells per side within the defined boundaries.
    The proposed rule would require trustee officials to enter at least 
one set of data for both the background and tidal currents that 
suitably represents conditions existing in the defined gridded area 
affected by the discharge or release. Background currents of 
significance are those represented by the Gulf Stream, California 
current, Florida current, and Alaska current. Major rivers such as the 
Hudson River and Mississippi River are also sources of significant 
background current. After the user enters data on background and tidal 
currents for one or more grid cells, the proposed NRDAM/CME Version 2.2 
determines the data values for the remaining grid cells.
    The proposed NRDAM/CME Version 2.2 user interface and the computer 
mouse allow for simplified entry of the currents grid and background 
and tidal currents. The proposed NRDAM/CME Version 2.2 technical 
document, Volume II, Section 4 explains how to enter data on currents 
and how to view the data once entered. Volume II also describes types 
of currents and lists various sources of data on currents. Sources of 
data include: The National Ocean Service, Department of Commerce, 
Riverdale, MD, (301) 436-6990, which publishes tidal tables, tidal 
current tables, regional tide and tidal current tables, tidal 
circulations and water levels forecast tables, tidal current charts, 
and tidal current diagrams; and, Eldridge Tide and Pilot Book, Robert 
Eldridge White, Publisher, 39 Commercial Wharf, Boston, MA 02110, (617) 
742-3045. The NRDAM/CME Version 2.2 technical document, Volume II 
provides additional sources of data for background and tidal currents.
    Information on wind conditions may be available from local sources 
or from the National Climatic Data Center, Asheville, NC, (704) 271-
4800.
    When specifying data on the volume of the discharged oil or 
released hazardous substance removed during response actions, trustee 
officials must indicate the location and time frame of the removal. 
Situations may arise in which response actions were actually taken at a 
particular location over a particular time frame; however, according to 
the proposed NRDAM/CME Version 2.2, the discharged oil or released 
hazardous substance had not yet reached that location at that time. In 
such situations, if the user entered the actual location and timing of 
the response actions, the proposed NRDAM/CME Version 2.2 would 
nonetheless fail to subtract from its calculations the volume of 
discharged oil or released hazardous substance removed during response. 
The Department solicits comment on ways of addressing this issue. 
Moreover, the Department notes that when entering data on the volume of 
the discharged oil or released hazardous substance removed, trustee 
officials should be careful to specify the volume of the actual 
discharged oil or released hazardous substance removed rather than the 
total volume of contaminated water or sand removed.
    The Gross National Product Implicit Price Deflator is published in 
the Survey of Current Business, which is available from the U.S. 
Department of Commerce/Bureau of Economic Analysis, 1441 L Street, NW, 
Washington, DC, 20230, (202) 606-9900. The proposed NRDAM/CME Version 
2.2 uses the Gross National Product Implicit Price Deflator for base 
year 1987 to calculate damages in current dollars. Due to a recent 
change in the way the Gross National Product Implicit Price Deflator is 
calculated, values for base year 1987 are available only back to 1987. 
Therefore, trustee officials who wish to calculate current damages for 
years prior to 1987 will need to manually adjust the model output using 
the appropriate Implicit Price Deflator series. Furthermore, 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/CME Version 2.2 and the form in 
which they intend to enter the information into the NRDAM/CME Version 
2.2.
    For further information on the proposed required incident-specific 
data inputs, see the NRDAM/CME Version 2.2 technical document, Volume 
II, Section 4.
2. Additional User-Supplied Data Inputs
    The Department is proposing to allow trustee officials, under 
certain circumstances, to supply incident-specific data inputs in 
addition to the required data inputs. 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 the water differed significantly from the typical 
values for that season, as built into the proposed NRDAM/CME Version 
2.2, and if the data can be collected consistent with the requirements 
of reasonable cost and cost effectiveness:
     Water temperature at the time and point where the 
discharged oil or released hazardous substance entered the water;
     Total suspended sediment concentration at the time and 
point where the discharged oil or released hazardous substance entered 
the water;
     Mean settling velocity of suspended solids at the time and 
point where the discharged oil or released hazardous substance entered 
the water; and
     Air temperature at the time and point where the discharged 
oil or released hazardous substance entered the water.
    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/CME Version 
2.2 supplies default values.
    For further information on the proposed additional incident-
specific data inputs, see the NRDAM/CME Version 2.2 technical document, 
Volume II, Section 4.

C. Geographic Information System

    The proposed NRDAM/CME Version 2.2 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/CME Version 2.2 technical document, 
Volume I, Section 2.
    The proposed NRDAM/CME Version 2.2 is intended to cover all coastal 
and marine waters of the United States, including those of the 
territories and possessions. The precise boundaries of the proposed 
NRDAM/CME Version 2.2 are affected by the availability of data and the 
manner in which geographic data are handled by the model. However, the 
following general criteria were used to determine the geographic scope 
of the proposed NRDAM/CME Version 2.2: open water out to the seaward 
boundary of the Exclusive Economic Zone; estuarine waters with an 
average salinity above 0.5 parts per thousand; and intertidal portions 
of shorelines of those water bodies. The Department solicits comment on 
whether the proposed NRDAM/CME Version 2.2 does cover all the 
geographic areas that meet these criteria and whether any of the areas 
that are covered by the proposed model do not satisfy these criteria. 
The Department further solicits comment on whether different or 
additional criteria should be used to determine the geographic scope or 
use of the model.
    Under the proposed rule, trustee officials would be allowed to use 
the NRDAM/CME Version 2.2 to obtain a rebuttable presumption only for 
those discharges and releases that occurred within the area covered by 
the model. If a discharge or release originated outside the area 
covered by the proposed NRDAM/CME Version 2.2 but migrated into that 
area, an assessment performed using the model would not be granted a 
rebuttable presumption. The Department solicits comment on whether 
trustee officials should be allowed to use the NRDAM/CME Version 2.2 
and obtain a rebuttable presumption for assessments involving 
discharges and releases that occur outside but migrate into the area 
covered by the model. The Department further solicits comment on how 
the user-supplied data inputs should be adjusted in such cases.
    The proposed NRDAM/CME Version 2.2 assigns a habitat type to each 
grid cell. The Department wants to ensure that the model reflects the 
most accurate information available. The Department encourages 
commenters to review the proposed habitat designations and provide 
information about possible revisions that should be made in the final 
version of the model. In particular, the Department requests resource 
management agencies to review the habitat designations in the locations 
for which they have expert knowledge.
    To facilitate thorough review of the proposed NRDAM/CME Version 2.2 
in cases where commenters believe the proposed habitat designations to 
be incorrect, the Department has included a habitat editing feature in 
the model that allows commenters to override the model's habitat 
designations for particular grid cells. Commenters who believe that 
particular grid cells have been assigned incorrect habitat designations 
may use this feature to indicate the specific grid cells that should be 
corrected and provide that information to the Department. The 
Department requests that commenters submit their edited habitat 
designations in computer binary form copied onto a diskette. Commenters 
should also provide appropriate technical documentation supporting 
their edited habitat designations. The habitat editing feature enables 
commenters to run the model using corrected habitat designations for 
particular grid cells. For further information on this feature, see the 
NRDAM/CME Version 2.2 technical document, Volume II, Appendix D.
    The habitat editing feature was developed as a temporary tool to 
facilitate review during the public comment period. Under today's 
proposed rule, trustee officials would not be allowed to override the 
habitat designations in the final version of the model if they intended 
to obtain a rebuttable presumption. However, the Department is 
soliciting comment on whether the habitat editing feature should be 
incorporated into the final version of the model and whether the rule 
should be modified to allow trustee officials to override the habitat 
designations for particular grid cells and still obtain a rebuttable 
presumption.
    Allowing trustee officials to override the model's habitat 
designations might enable fine-tuning of the model to better reflect 
site-specific conditions. On the other hand, type A procedures are 
designed to simplify assessments, minimize fieldwork requirements, and 
narrow the potential areas of dispute. Providing an option to override 
the habitat designations could undermine these goals. Therefore, the 
Department solicits comment on whether the final rule should allow 
trustee officials to override the habitat designations and, if so, 
under what conditions.

D. Submodels

    The proposed NRDAM/CME Version 2.2 includes four linked submodels: 
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/CME 
Version 2.2 databases and the incident-specific data inputs supplied by 
trustee officials to perform Injury Determination, Quantification, and 
Damage Determination.
1. 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. Wind, background currents, and tidal currents 
affect the movement of the particles on the water surface and in the 
water column.
    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 NRDAM/CME Version 2.2 continues the simulations until 
all environmental exposure levels are below acute toxicity thresholds. 
The proposed Chemical and Toxicological Database includes acute 
toxicity values for each oil and hazardous substance covered by the 
proposed NRDAM/CME Version 2.2. The proposed Submodel creates a time 
series 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/CME Version 2.2 technical document, Volume I, Section 3. 
For further information on the proposed Chemical and Toxicological 
Database, see the NRDAM/CME Version 2.2 technical document, Volume I, 
Section 7; and Volume III, Section 2.
2. 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 time 
series 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. The particles move at random within an 
ecosystem during a single season. Each contiguous grouping of grid 
cells of the same habitat type represents a separate ecosystem. 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, shellfish harvest areas, waterfowl hunting areas, and 
furbearer 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 coastal and marine habitats and 
species biomass are encouraged to provide the data to the Department. 
Reviewers of the proposed NRDAM/CME Version 2.2 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.
     For further information on the proposed Biological Effects 
Submodel, see the NRDAM/CME Version 2.2 technical document, Volume I, 
Section 4. For further information on the proposed Biological Database, 
see the NRDAM/CME Version 2.2 technical document, Volume I, Section 6. 
The actual database values and their respective reference sources are 
presented in the NRDAM/CME Version 2.2 technical document, Volume IV.
3. 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 proposed Restoration Submodel evaluates 
three types of restoration actions: habitat restoration, restoration of 
assimilative capacity, and restocking fish and wildlife. The 
restoration costs computed by the Restoration Submodel comprise one 
component of the damage figure; the other component, compensable value, 
is calculated by the separate Compensable Value Submodel.
     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 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. 
When mangrove swamps, macroalgal beds, or seagrass beds are affected, 
the proposed Submodel evaluates replanting. When mollusk reefs are 
affected, the proposed Submodel evaluates reseeding using spat. When 
coral reefs are affected, the proposed Submodel evaluates transplanting 
of coral colonies.
     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 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 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 coastal and marine 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 (Aug. 1, 1986); and 59 FR 14273 (March 25, 1994). The 
proposed Restoration Submodel calculates damages associated with 
restoring baseline assimilative capacity of coastal and marine 
environments in cases where habitat restoration action is not 
warranted.
    When habitat restoration actions are not warranted, the proposed 
NRDAM/CME Version 2.2 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 coastal and marine environments. The continued presence of this 
chemical mass reduces the overall assimilative capacity of the coastal 
and marine 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 coastal 
and marine environments. Specifically, the proposed Submodel assumes 
that an equivalent mass of contaminated sediment will be removed from 
one of 247 harbors, bays, or river mouths that have been identified as 
National Status and Trends sites by NOAA. 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 
National Status and Trends sites. The Department further solicits 
comment on whether there are sufficient technical data concerning such 
methods to allow for their incorporation into the NRDAM/CME and, if so, 
where such data are located.
    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 restoration cost. This figure is added to 
the compensable value figure computed by the Compensable Value Submodel 
to form the damage claim.
    For further information on the proposed Restoration Submodel, see 
the NRDAM/CME Version 2.2 technical document, Volume I, Section 5. For 
further information on the proposed Restoration Cost Database, see the 
NRDAM/CME Version 2.2 technical document, Volume I, Sections 5, 12, and 
13; and Volume V, Sections 5-7.
4. Compensable Value Submodel
    The proposed Compensable Value Submodel calculates compensable 
value. Compensable value, as computed by the proposed Compensable Value 
Submodel, is the sum of certain economic values lost to the public 
pending the reestablishment of baseline conditions through natural 
recovery or restoration, 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 recreational or commercial 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 coastal and marine environments 
that are in a form that can be used in the NRDAM/CME, 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 shellfish species; (3) 
certain commercially exploited furbearer species; (4) certain 
recreationally harvested fish species; (5) certain recreationally 
harvested shellfish species; and (6) certain recreationally harvested 
waterfowl species.
     Trustee officials may recover natural resource damages only for 
lost public values and are not authorized to seek compensation for 
private commercial losses. However, commercially exploited species are 
public resources until harvested and trustee officials are authorized 
to recover damages for the public loss in value of those resources due 
to the discharge or release. The compensable value for lost harvests of 
commercially exploited fish, shellfish, 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, shellfish, 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, shellfish, 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, shellfish, and 
waterfowl species, as computed by the Biological Effects Submodel, by 
the marginal value of harvesting an additional animal, as supplied by 
the Compensable Value Database.
     Under the proposed rule, lost nonconsumptive use values are 
calculated for: (1) Lost beach visitation due to closure; (2) lost 
boating due to closure; and (3) lost wildlife viewing for trips 
originating within the immediate area. 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 Department is concerned about the proposed methodology for 
calculating compensable value for lost wildlife viewing and solicits 
comment on all aspects of the methodology. 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 local viewing 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/CME Version 2.2 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 local viewing value varies with the size 
of the affected wildlife population and the estimated number of 
affected local 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 local viewing value for species that are 
abundant and areas that have few affected local recreational trips. 
Alternatively, the proposed Compensable Value Submodel estimates a 
higher per animal local viewing value for species that are less 
abundant and areas that have more affected local recreational trips.
     The Department recognizes that this methodology can produce 
anomalous results. For example, the proposed Compensable Value Submodel 
estimates that the value for local viewing of a sea otter in Alaska is 
$0.00304 per animal per year, due to the relatively high number of 
otters and relatively low number of local viewers in that area. On the 
other hand, the proposed Compensable Submodel estimates that the value 
for local viewing of an oystercatcher in a particular region in Florida 
is $257,956.30 per bird per year, because there are very few 
oystercatchers and many local viewers in that area. Furthermore, the 
proposed NRDAM/CME Version 2.2 performs its calculations based on 
probabilities. The total local viewing value of an oystercatcher would 
be lost only if there was a 100 percent certainty of killing the 
oystercatcher, which would imply contamination covering a large portion 
of the Florida coast.
    Such a scenario would constitute a major discharge or release, 
rendering use of the proposed NRDAM/CME Version 2.2 inappropriate. For 
minor discharges and releases, the proposed Compensable Value Submodel 
would calculate lost local viewing value for the Florida oystercatcher 
based on a small percentage of the total local viewing value of a 
single bird, thereby providing a value considerably less than 
$257,956.30.
     A detailed explanation of the methodology for calculating 
compensable value for lost local wildlife viewing is provided in the 
NRDAM/CME Version 2.2 technical document, Volume I, Section 8.4. The 
specific per animal local viewing values incorporated in the proposed 
NRDAM/CME Version 2.2 are listed in the NRDAM/CME Version 2.2 technical 
document, Volume V, Tables V.1.3 through V.1.12. The Department wishes 
to emphasize that the per animal local viewing values do not represent 
the total ``value'' of the animals nor do they encompass restoration 
costs, which are calculated separately, as discussed in Section IV.D.3 
of this preamble.
    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 local viewing 
value. The Department also requests comment on criteria for excluding 
extremely small and large values for a particular species from the 
NRDAM/CME and the conditions under which such criteria should be 
applied. Further, commenters with additional valuation data or 
alternative valuation methodologies concerning wildlife viewing in 
coastal and marine environments are encouraged to provide the data and 
methodologies to the Department.
    One alternative under consideration is the deletion of 
nonconsumptive values from the NRDAM/CME Version 2.2 for those species 
that have consumptive value. Another alternative under consideration is 
the deletion of all nonconsumptive wildlife values from the NRDAM/CME 
Version 2.2. Many species, such as bald eagles, have little or no 
consumptive use. Therefore, if nonconsumptive wildlife values were 
deleted from the NRDAM/CME Version 2.2, 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 coastal 
and marine environments. Based on the comments received, the Department 
will decide whether to retain the proposed compensable values for lost 
local wildlife viewing, modify those values, exclude extremely large 
and small values for particular species, or delete all lost wildlife 
viewing values from the final version of the NRDAM/CME.
    The per unit values in the proposed Compensable Value Database are 
stated in 1991 dollars. 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. The current version of Office of Management and Budget 
Circular A-94 (OMB Circular A-94), dated October 29, 1992, does not 
establish a specific discount rate for natural resource damages. 
However, OMB Circular A-94 does specify a seven percent discount rate 
for public investments.
    The Department is soliciting comment on whether the NRDAM/CME 
Version 2.2 should include a fixed discount rate based on the OMB 
Circular A-94 discount rate for public investments 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. OMB Circular A-94 is 
available from the OMB Publications Office (202-395-7332).
    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/CME 
Version 2.2 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 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/CME Version 2.2 technical document, Volume I, Section 8. 
For further information on the proposed Compensable Value Database, see 
the NRDAM/CME Version 2.2 technical document, Volume I, Sections 9-11; 
and Volume V, Sections 1-4.

V. Conditions Regarding Use of the NRDAM/CME Version 2.2

    The proposed rule provides several conditions regarding use of the 
NRDAM/CME Version 2.2. Under the proposed rule, if the discharged oil 
or released hazardous substance occurred in a coastal or marine 
environment, trustee officials would be required to determine if the 
conditions regarding use of the NRDAM/CME Version 2.2 were met. The 
conditions regarding use of the NRDAM/CME Version 2.2 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/CME Version 2.2 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/CME 
Version 2.2, type B procedures, or a combination, and obtain a 
rebuttable presumption. Use of combined type A and type B procedures is 
subject to the limitations discussed in Section II.B.2 of this 
preamble. Trustee officials would decide which assessment procedures to 
use based on considerations of ``cost effectiveness'' and ``reasonable 
cost,'' as defined in 43 CFR 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/CME Version 2.2, 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. The hazardous substances included in the Chemical 
Database are listed in the NRDAM/CME Version 2.2 technical document, 
Volume III, Table III.2.1. Oils are divided into categories as 
specified in the NRDAM/CME Version 2.2 technical document, Volume III, 
Table III.2.4. The Department solicits comment on whether trustee 
officials should be allowed to use the NRDAM/CME Version 2.2 for oils 
and hazardous substances that are not listed in Tables III.2.1 or 
III.2.4 through use of a proxy oil or hazardous substance. The 
Department further solicits comment on how appropriate proxies for oils 
and hazardous substances might be selected.
2. Magnitude of Discharge or Release
    The proposed NRDAM/CME Version 2.2 is designed to calculate damages 
resulting from minor discharges or releases. The proposed NRDAM/CME 
Version 2.2 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/CME Version 2.2.
    Also, the proposed NRDAM/CME Version 2.2 assumes that injuries to 
biological resources are small enough that the ecosystem structure is 
not significantly changed. For example, the proposed NRDAM/CME Version 
2.2 does not address changes in predator-prey relationships or 
reproductive rates. Moreover, the proposed NRDAM/CME Version 2.2 
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/CME Version 2.2 
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/CME Version 2.2. 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/CME Version 2.2. 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. Entry into Water
    The proposed NRDAM/CME Version 2.2 models the fate of discharged 
oils and released hazardous substances only upon their entry into the 
water. Further, the proposed NRDAM/CME Version 2.2 does not model the 
fate of discharges or releases that occur deep underwater. Therefore, 
if the discharged oil or released hazardous substance did not enter 
water at or near the 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/CME Version 2.2 is built upon thousands 
of grid cells each representing a discrete geographic area. 
Collectively these cells constitute the coastal and marine 
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/CME Version 2.2 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/CME Version 2.2. 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/CME Version 2.2 
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/CME Version 2.2, 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/CME Version 2.2 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/CME Version 2.2 uses two-dimensional, vertically 
averaged values for background and tidal currents. Three-dimensional 
effects, such as reverse flows at depth, upwelling, downwelling, and 
vertical changes in background and tidal current velocities 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/CME Version 2.2 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/CME 
Version 2.2 may be warranted.
2. Effect of Response Actions
    Under the proposed rule, trustee officials would be required to 
supply information on the volume of the discharged oil or released 
hazardous substance that was removed during response actions. The 
proposed NRDAM/CME Version 2.2 takes this information into 
consideration when determining injury. However, the proposed NRDAM/CME 
Version 2.2 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/CME Version 2.2 may be 
warranted.
3. Types of Natural Resources Injured
    The proposed NRDAM/CME Version 2.2 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/CME Version 2.2 may be warranted.
4. Pathway of Contamination
    The proposed NRDAM/CME Version 2.2 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/CME Version 2.2 may be 
warranted.
5. Type of Biological Injuries
    The proposed NRDAM/CME Version 2.2 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/CME Version 2.2 may be warranted.
6. Nature of Compensable Values
    The proposed NRDAM/CME Version 2.2 calculates compensable values 
for: (1) Lost harvests of commercially exploited fish species; (2) lost 
harvests of commercially exploited shellfish species; (3) lost harvests 
of commercially exploited furbearer species; (4) lost harvests of 
recreationally harvested fish species; (5) lost harvests of 
recreationally harvested shellfish species; (6) lost harvests of 
recreationally harvested waterfowl species; (7) lost wildlife viewing 
for trips originating within the immediate area; (8) lost beach 
visitation due to closure; and (9) 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/CME Version 2.2 may be warranted.

VI. Response to Comments

    The Department received several comments in response to its 
previous advance notices of proposed rulemaking. The Department 
appreciates the time and effort expended by the commenters.

A. General

    Comment: Many of the commenters provided or cited reference 
material for use in the construction of the revised NRDAM/CME 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: One commenter provided a list of assumptions upon which 
the NRDAM/CME Version 1.2 was constructed and indicated that the 
assumptions needed to be substantiated. Another commenter suggested 
that the revised NRDAM/CME be subjected to a comprehensive, independent 
review to verify its algorithms and coding.
    Response: The Department acknowledges that the proposed NRDAM/CME 
Version 2.2 has been built upon various assumptions. The Department 
notes that the NRDAM/CME Version 2.2 technical document is being made 
available to the public so that all assumptions, data, and computer 
coding can receive independent review.
    Comment: Several commenters generally endorsed the approach to the 
development of type A procedures but thought that the NRDAM/CME Version 
1.2 was too simplistic. These commenters stated that the applicability 
of the model to discharges and releases in certain geographic areas was 
questionable.
    Response: The proposed NRDAM/CME Version 2.2 incorporates 
extensively revised biological and economic databases. The proposed 
NRDAM/CME Version 2.2 considers multiple habitats within a single 
application of the model and includes a broader range of habitat types 
than was included in the NRDAM/CME Version 1.2. Further, the 
variability of sea floor depths has been included in the model.
    Comment: One commenter stated that the databases included in the 
NRDAM/CME Version 1.2 are inadequate. The commenter suggested that the 
Department conduct new studies to fill in these perceived deficiencies.
    Response: CERCLA provides that the natural resource damage 
assessment regulations are to incorporate the ``best available'' 
procedures. CERCLA sec. 301(c)(2). The statute did not authorize, nor 
has funding been made available for, extensive technology development 
or generation of original data. The Department has endeavored to 
include all appropriate information in formulation of the proposed 
NRDAM/CME Version 2.2. The databases have been developed based on 
information that was not available at the time the NRDAM/CME Version 
1.2 was developed. For example, whereas the biological database in the 
NRDAM/CME Version 1.2 contained approximately 130 species, the proposed 
NRDAM/CME Version 2.2 contains approximately 1,000 species. The 
Department solicits information on sources of data or information on 
modelling technology that would be useful in improving the model.
    Comment: One commenter stated that a model designed to quantify 
damages for injured resources must predict zero damages for some de 
minimis amounts of oil.
    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 
damages even with simplified procedures such as the NRDAM/CME Version 
2.2. However, the Department also notes that CERCLA does not identify a 
lower limit below which no damages may be recovered 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/CME Version 2.2 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. Damages can range from zero or near zero for the 
smallest discharges and releases to millions of dollars for larger 
discharges or releases of highly toxic substances in more sensitive 
environments. This reflects a compensatory rather than punitive 
framework as mandated by CERCLA.
    Comment: Several commenters addressed the model documentation 
provided for the NRDAM/CME Version 1.2. One commenter suggested that 
the Department include an on-line explanation of the limits to the 
model's applicability. The commenter thought that such an explanation 
would contribute to greater understanding of the model and its 
limitations than is possible when information is buried in several 
hundred pages of technical documentation. Further, the commenter 
recommended placing the instructions for use of the model in a separate 
book rather than in an appendix and further recommended that the 
documentation provide greater specificity on the user-supplied data 
inputs.
    Response: The Department acknowledges the extensiveness of the 
technical documentation accompanying the proposed NRDAM/CME Version 
2.2. The extensive documentation has been provided to ensure, to the 
maximum extent possible, that all of the underlying assumptions 
contained in the model, its algorithms, and its databases have been 
explained and made available for public review and comment. The 
Department acknowledges the possibility that certain technical factors 
and model limitations might not be readily apparent due to the 
comprehensiveness of the technical documentation. For this reason, this 
preamble has, where appropriate, identified sections of the NRDAM/CME 
Version 2.2 technical document where pertinent technical explanations 
can be found. The user interface contained in the proposed NRDAM/CME 
Version 2.2 also provides an on-line help screen and explanation of the 
model's user interface. Volume II of the NRDAM/CME Version 2.2 
technical document contains a user's manual.
    Comment: One commenter suggested that the model output indicate the 
total area covered by a slick and the dollar value used per unit of 
loss to calculate damages in the spill year.
    Response: The Department notes that the printed output of the 
proposed NRDAM/CME Version 2.2 does indicate the total area covered by 
a slick. The Department has not identified in the printed output a 
single dollar value per unit of loss, because the model calculates 
damages based on a number of different components of injuries and 
losses.
    Comment: One commenter questioned whether the natural resource 
damage assessment regulations allow for adequate participation by PRPs.
    Response: The overall administrative process for conducting an 
assessment, including the opportunity for PRP involvement, is being 
examined in the ongoing biennial review and is beyond the scope of this 
rulemaking. Nonetheless, the Department notes that the regulations 
currently require trustee officials to provide PRPs with a Notice of 
Intent to Perform an Assessment before beginning an assessment and 
invite the participation of the PRPs. Trustee officials are also 
required to make the Assessment Plan available to PRPs for review and 
comment. Finally, trustee officials are authorized to allow PRPs to 
perform assessment work. See 43 CFR Sec. 11.32, as amended by 59 FR 
14282.

B. Physical Fates

    Comment: One commenter stated that the revised NRDAM/CME should not 
treat bioturbation as a process for removing contaminant from the area 
of concern.
    Response: The proposed NRDAM/CME Version 2.2 calculates the 
distribution of contaminant concentrations at the surface, in the upper 
and lower water columns, and in the sediments. The sediment 
concentration used for calculating toxicity to benthic species is the 
dissolved interstitial water concentration within the sediment. The 
Department acknowledges that bioturbation is not a contaminant removal 
process but instead functions as an exchange mechanism to distribute 
the contaminant concentrations between the lower water column and the 
upper ten centimeters of the sediments. In this manner, the resultant 
contaminant concentrations in the interstitial waters of the sediments 
and resultant toxicity to benthic organisms are determined by the 
proposed Physical Fates Submodel.
    Comment: One commenter questioned whether use of the NRDAM/CME 
Version 1.2 was appropriate in Alaska when ice cover is present. 
Another commenter questioned whether the NRDAM/CME Version 1.2 
adequately modelled surface slicks that split into numerous slicks.
    Response: The proposed NRDAM/CME Version 2.2, unlike the NRDAM/CME 
Version 1.2, specifically addresses ice cover in Alaska. The proposed 
NRDAM/CME Version 2.2 also uses different calculations to compute 
surface spreading of the contaminant plume. The proposed NRDAM/CME 
Version 2.2 employs individual ``Lagrangian'' particles to simulate the 
movement of a surface slick. Thus, the proposed model can simulate the 
splitting of a single surface slick into numerous slicks. The 
Department specifically requests comments on both of these aspects of 
the proposed NRDAM/CME Version 2.2.
    Comment: Another commenter thought that the treatment of 
degradation rates in the NRDAM/CME Version 1.2 was inadequate, because 
sediment and water column degradation rates were not the same.
    Response: The Department notes that hydrolysis, photolysis, and 
biodegradation are the three major chemical transformation processes 
contributing to the degradation of an oil or hazardous substance in 
both water and sediment. Scientific efforts to measure the respective 
transformation rate constants have not been highly successful. 
Laboratory experiments often lack reproducibility. Moreover, there are 
apparent inconsistencies between laboratory results and actual field 
data. Thus, most estimation methods on the degradation of pollutants in 
water and sediments are based on the structural features of the 
chemical. The specifics of the estimation methodology used by the 
proposed NRDAM/CME Version 2.2 are explained in the NRDAM/CME Version 
2.2 technical document, Volume I, Section 7.6.

C. Biological Effects

    Comment: One commenter stated that the treatment and documentation 
of the mortality rates of birds coming in contact with a surface slick 
were inadequately addressed in the NRDAM/CME Version 1.2.
    Response: The Department acknowledges that extensive new 
information and data have become available on this issue since the 
development of the NRDAM/CME Version 1.2. The proposed NRDAM/CME 
Version 2.2 incorporates this new information and data and allows for 
the differences in extent of exposure that sea birds and waterfowl 
experience in a spill event. Further, the proposed NRDAM/CME Version 
2.2, unlike the NRDAM/CME Version 1.2, addresses the mortality of sea 
birds and waterfowl based on an exposure volume rather than only a 
terminal thickness of surface slick. For further information, see the 
NRDAM/CME Version 2.2 technical document, Volume I, Section 4.2.
    Comment: One commenter asserted that there is a natural tendency of 
many marine organisms to avoid spilled materials and suggested that the 
NRDAM/CME Version 1.2 be revised to reflect this.
    Response: Evidence for avoidance to toxic materials has been 
recorded in marine organisms for certain released substances (e.g., 
chlorine), but a lack of such avoidance has been indicated for others 
(e.g., fish, invertebrates and marine mammals do not generally avoid 
oils.) Due to the large number of substances included in the NRDAM/CME 
Version 2.2 databases, data sufficient for incorporating such actions 
in the model have not been shown to be available. Should commenters 
have knowledge of additional data available on such an avoidance 
phenomena, the Department would appreciate such information.
    Comment: Several comments were provided on the common and 
scientific names contained in the database of the NRDAM/CME Version 
1.2. The commenters indicated that there were numerous other species of 
fish and mammals not included in the database that have commercially 
and recreationally important values. The commenters further suggested 
that adult and larval populations and seasonal primary productivity 
rates be revised to more closely reflect actual conditions in specific 
areas.
    Response: The Department appreciates the commenters' technical 
review. The Department notes that the Biological Database contained in 
the proposed NRDAM/CME Version 2.2 includes a broader number of species 
and seasonal biomass densities for biota that have commercially and 
recreationally important values. The proposed Biological Database also 
provides greater specificity of the habitat types. The Department is 
requesting specific review of the proposed Biological Database.
    Comment: One commenter stated that the Department had identified 
the source of information used for the construction of the toxicity 
database of the NRDAM/CME Version 1.2 but had failed to document why it 
chose one value over another. The commenter thought that in certain 
instances, the injury threshold values contained in the NRDAM/CME 
Version 1.2 were lower than the no-observable-effects level (NOEL) 
contained in the water quality criteria developed by the United States 
Environmental Protection Agency (EPA). Therefore, according to this 
commenter, the NRDAM/CME Version 1.2 may overestimate toxic effects. 
Another commenter stated that the Department should not employ injury 
thresholds that are lower than those required in preventative type 
programs like the CWA.
    Response: The Department notes that the values contained in the 
NRDAM/CME Version 1.2 chemical toxicity database were derived from 
published databases. Volume I, Section 4.1 of the NRDAM/CME Version 1.2 
technical document explained that one specific toxicological value was 
not chosen over another as suggested by the commenter. Instead, the 
technical document explained the quality control procedures and the 
methodology used to derive specific mean toxicity values. Similarly, 
Volume I, Section 7.9 of the NRDAM/CME Version 2.2 technical document 
explains the development of the toxicity data set and the quality 
control procedures used to incorporate recently available technical 
data. The NRDAM/CME Version 2.2 technical document further describes 
the manner in which the selected data were calibrated to specified 
standard conditions prior to the computation of mean toxicity values 
for each oil or hazardous substance. The NRDAM/CME Version 2.2 
technical document, Volume III, Table III.2.1 lists mean 96-hour LC50 
values (the lethal concentration at which 50% of test organisms die 
within 96 hours) and mean EC50 values (effective concentration at which 
the growth rate is 50% of control values) for each of the 469 oils and 
hazardous substances contained in the proposed NRDAM/CME Version 2.2.
    The toxicity threshold values listed in the NRDAM/CME Version 2.2 
technical document, Volume III, Table III.2.1 are used to control the 
termination of calculations performed by the Physical Fates Submodel. 
The Physical Fates Submodel ceases its calculations of the distribution 
of the discharged oil or released hazardous substance at the point 
where the water concentrations fall below the specified threshold 
value. Since the toxicity threshold values serve as switches to turn 
off the calculations of the Physical Fates Submodel, they could have 
been set at any level. Instead, individual values were determined for 
each oil and hazardous substance contained in the Chemical and 
Toxicological Database using the toxicity algorithms described in 
Volume I, Section 4.2.1 of the NRDAM/CME Version 2.2 technical 
document. Thus, comparisons of the threshold values used in the 
proposed NRDAM/CME Version 2.2 and the NOEL values used in preventative 
programs are inapposite.

D. Restoration

    Comment: Several commenters requested that the NRDAM/CME Version 
1.2 be revised to calculate the full costs of restoring injured natural 
resources. Other commenters thought there was no appropriate way to 
determine restoration costs for inclusion in the model.
    Response: In compliance with Ohio v. Interior and Colorado v. 
Interior, the proposed NRDAM/CME Version 2.2 has been developed to 
include consideration of restoration costs in the calculation of 
damages. The Department invites comment on the appropriateness of the 
specific costs included. For further information on the derivation of 
restoration costs, see Section IV.D.3 of this preamble; and the NRDAM/
CME Version 2.2 technical document, Volume I, Section 5; and Volume V, 
Sections 5-7.
    Comment: One commenter suggested that the NRDAM/CME Version 1.2 be 
revised to include the cost for restocking certain types of fish and 
shellfish.
    Response: The proposed NRDAM/CME Version 2.2 includes the cost for 
restocking certain types of fish and shellfish. The restocking costs 
have been determined based on regional costs and availabilities of the 
fish and shellfish.
    Comment: One commenter addressed bird cleaning and rehabilitation 
actions as a potential cost that should be included in the model. The 
commenter suggested letting the model calculate cleaning costs based on 
the number of birds the model indicated were exposed to the spill.
    Response: The Department has not included bird cleaning and 
rehabilitation efforts into the calculations performed by the proposed 
NRDAM/CME Version 2.2. The Department considers that such costs usually 
would be part of the costs incurred for cleanup of spills rather than 
natural resource restoration.
    Comment: One commenter suggested that costs of replacement of 
resources is not an appropriate measure of damages if restoration is 
not going to actually be carried out.
    Response: CERCLA requires that 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). Restoration includes actions taken to promote 
and monitor natural recovery. Therefore, trustee officials must always 
undertake some form of restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources when they recover natural resource 
damages.
    Comment: One set of commenters suggested that the regulations 
provide that trustee officials simply be reimbursed for the actual 
expenses associated with restoration actions, thereby eliminating the 
need for a procedure to project restoration costs.
    Response: Requiring trustee agencies to fund restoration and seek 
reimbursement later would place a substantial and unwarranted burden 
upon those agencies. Further, even if such a system were instituted, 
trustee officials would still need a procedure for determining injuries 
and appropriate restoration. For this purpose, the type A procedures 
provide standard methodologies for conducting simplified assessments, 
and the type B procedures are available for more complex cases.
    Comment: One commenter noted that the model should reflect a 
greater likelihood of need for restoration in instances where oil comes 
ashore and affects beaches or coastal wetlands.
    Response: The proposed NRDAM/CME Version 2.2 does evaluate 
restoration actions in instances where oil comes ashore. Comment is 
invited on the appropriateness of the modelling techniques and data 
used in this evaluation.
    Comment: One commenter asserted that the choice of appropriate 
restoration actions available in the marine environment may be very 
limited.
    Response: The proposed NRDAM/CME Version 2.2 evaluates a range of 
restoration actions. Comment is solicited on the appropriateness of the 
actions proposed for inclusion.
    Comment: One commenter asserted that in the case of most discharges 
and releases in marine systems, natural recovery renders restoration 
efforts unnecessary.
    Response: The proposed NRDAM/CME Version 2.2 recognizes the 
potential for natural recovery in the determination of the most cost-
effective restoration activities. As discussed in Section IV.D.3 of 
this preamble and in the NRDAM/CME Version 2.2 technical document, 
Volume I, Section 5, the anticipated rate of natural recovery has a 
direct bearing on the determination of a damage figure.
    Comment: One commenter advised against the use of fish and wildlife 
cost-per-organism tables in determining restoration costs.
    Response: The proposed NRDAM/CME Version 2.2 does not consider 
restoration costs based on cost-per-organism tables. However, the model 
does include regional restocking costs for certain commercially 
available species, when appropriate, as part of the restoration costs.
    Comment: One commenter noted that the Department's natural resource 
damage assessment regulations should include a mechanism that allows 
the value of PRP-financed remedial activities to be compared to or 
deducted from the value of the calculated natural resource damages. In 
addition, one commenter noted that the regulations should clarify 
whether restoration includes the results of clean-up or ``treatment'' 
of affected areas.
    Response: The regulations already provide that natural resource 
damages are to be 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 * 
* * .'' See 43 CFR 11.15(a)(1). The proposed type A procedure for 
coastal and marine environments would require trustee officials to 
supply data on the volume of the discharged oil or released hazardous 
substance cleaned up from the water and shore.

E. Economic Issues

    Comment: One commenter thought that the revised NRDAM/CME should 
incorporate lost nonuse values. This commenter indicated that the 
absence of such values in the model would introduce significant 
downward bias in the calculus. One commenter suggested that the 
Department include estimates of lost nonuse values based on a 
comparison with lost use values. The commenter suggested a relationship 
on the order of 0.5 to 1 times the value of the lost use values.
    Response: The Department has not, at this time, included the loss 
of nonuse values in the proposed NRDAM/CME Version 2.2. Virtually no 
empirical studies have been found that address nonuse values for 
resources in coastal and marine environments that are in a form that 
can be used in the NRDAM/CME, i.e. that allow the calculation of 
marginal values appropriate for relatively small losses in the stock of 
natural resources. Also, the Department does not believe there is 
adequate empirical evidence to support the calculation of nonuse values 
based on a ratio to use values. In cases where significant nonuse 
losses are anticipated, trustee officials may consider using type B 
procedures instead of or in addition to a type A procedure. The 
calculation of lost nonuse values using type B procedures is the 
subject of a separate rulemaking being conducted by the Department. See 
59 FR 23097.
    Comment: One commenter thought that the economic values contained 
in the NRDAM/CME Version 1.2 for the Arctic region should be expanded.
    Response: The Department notes that the Compensable Value Database 
contained in the proposed NRDAM/CME Version 2.2 is considerably more 
extensive than the economics database in the NRDAM/CME Version 1.2.

F. Tribal Issues

    Comment: Several commenters requested that the NRDAM/CME Version 
1.2 be revised to address tribal cultural or spiritual values and 
values of resources for subsistence and medicinal uses.
    Response: CERCLA specifically requires the development of type A 
procedures for the performance of simplified assessments using minimal 
field observations. CERCLA sec. 301(c)(2)(A). The statute also requires 
that the type A procedures incorporate the best available procedures. 
CERCLA sec. 301(c)(2). These statutory requirements and the limitations 
of available data necessitate an approach limited in scope. The 
decisions on which values would be included in the proposed NRDAM/CME 
Version 2.2 were made based on the availability of data in a form that 
could be used in the model. During future biennial reviews, as more 
data become available, the Department may consider the inclusion of 
additional values. Meanwhile, discharges or releases that affect 
natural resource values that are not adequately reflected in the 
proposed NRDAM/CME Version 2.2 can be addressed through the use of type 
B procedures.
    Comment: Several commenters expressed concern about 43 CFR 
11.84(b)(2), which provides that only ``committed uses'' of injured 
resources may be included in the estimation of compensable values. 
These commenters stated that due to the beliefs of Indian people and 
their commercial and subsistence reliance on natural resources, in 
general, Indian tribes have ``committed uses'' for all tribal 
resources. Therefore, these commenters thought that the assessment of 
compensable values should be allowed for all tribal resources.
    Response: The committed use provision of 43 CFR 11.84(b)(2) applies 
only to the use of type B procedures. The type B procedures are being 
examined in the ongoing biennial review and are beyond the scope of 
this rulemaking. However, the Department notes that the committed use 
concept was upheld in Ohio v. Interior. 880 F.2d at 461-62.
    Furthermore, the concept does not restrict the resources for which 
trustee officials may assess damages, it simply defines the types of 
damages that may be assessed for those resources pursuant to CERCLA. 
Whenever a resource is injured, trustee officials may assess damages 
for the cost of restoring, rehabilitating, replacing, and/or acquiring 
the equivalent of the injured resource, regardless of whether it has a 
committed use. The committed use requirement does, however, limit the 
assessment of damages for interim lost public uses of an injured 
resource to nonspeculative lost uses.
    Comment: Several commenters stated that Indian tribes should be 
allowed to assert claims for injured natural resources owned by tribal 
members where such resources are subject to a trust restriction on 
alienation, and that Indian tribal governments should also be allowed 
to bring claims for damages to natural resources belonging to, managed 
by, held in trust by, appertaining to, or otherwise controlled by an 
Indian tribe. These commenters asserted that the natural resource 
damage assessment regulations should expressly provide that Indian 
tribes may assert natural resource damage claims for both tribal 
natural resources and those trust resources owned by tribal members.
    Response: The scope of resources covered by the natural resource 
damage assessment regulations is determined by section 101(16) of 
CERCLA, which defines ``natural resources'' as:

    [L]and, fish, wildlife, biota, air, water, ground water, 
drinking water supplies, and other such resources belonging to, 
managed by, held in trust by, appertaining to, or otherwise 
controlled by the United States * * *, any State or local 
government, any foreign government, any Indian tribe, or, if such 
resources are subject to a trust restriction on alienation, any 
member of an Indian tribe.

    Clarification of this definition, which is incorporated into 43 CFR 
11.14(z), is beyond the scope of this rulemaking.

Authorship

    The primary authors of this rule are Mary C. Morton, David R. 
Rosenberger, James F. Bennett, and Stephen F. Specht.

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

    Coastal zone, Environmental protection, Fish, Hazardous substances, 
Incorporation by reference, Indian lands, Marine resources, National 
forests, National parks, Natural resources, Oil pollution, Public 
lands, Recreation areas, Sea shores, 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 11.18 is amended by revising paragraph (a)(4) to read as 
follows:


Sec. 11.18  Incorporation by reference

    (a) * * *
    (4) ``CERCLA Type A Natural Resource Damage Assessment Model for 
Coastal and Marine Environments Technical Documentation,'' Volumes I-
VI, dated October 1994, prepared for the U.S. Department of the 
Interior by Applied Science Associates, Inc., Narragansett, Rhode 
Island, A.T. Kearney, Inc., Alexandria, Virginia, 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(b)(1)(i)(A) and 11.41(a), (b), and 
(c)(2) of this part.
* * * * *


Sec. 11.19  [Removed and Reserved]

    3. Section 11.19 is removed and reserved.

Subpart C--Assessment Plan Phase

    4. Section 11.33 is amended by revising the heading of the section 
and paragraph (b) to read as follows:


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

* * * * *
    (b) Coastal and marine environments. (1) When a discharge or 
release occurs in a coastal or marine environment, as defined in 
Sec. 11.41(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 Coastal and Marine Environments Technical Documentation,'' dated 
October 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 
water at or near the surface;
    (D) The spatial and temporal distribution of biological resources 
in the area affected by the discharge or release is reasonably 
represented by the data contained in the NRDAM/CME, as defined in 
Sec. 11.41(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 shellfish species; lost harvests of 
commercially exploited furbearer species; lost harvests of 
recreationally harvested fish species; lost harvests of recreationally 
harvested shellfish 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 occurs in 
a coastal or marine environment, as defined in Sec. 11.41(b) of this 
part, and the authorized official determines that all of the conditions 
listed in paragraphs (b)(1)(i) and (b)(1)(ii) of this section are met, 
the authorized official shall use the type A procedure provided for in 
Sec. 11.41 of this part to calculate all damages.
    (3) If the discharged oil or released hazardous substance occurs in 
a coastal or marine environment, as defined in Sec. 11.41(b) of this 
part, and the authorized official determines that all of the conditions 
listed in paragraph (b)(1)(i) of this section are met and that one or 
more of the conditions listed in paragraph (b)(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. 11.41 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 occurs in 
a coastal or marine environment, as defined in Sec. 11.41(b) of this 
part, and the authorized official determines that one or more of the 
conditions listed in paragraph (b)(1)(i) of this section are not met, 
the authorized official shall use type B procedures to calculate all 
damages.
    (5) Notwithstanding paragraphs (b)(2) and (b)(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 advances all reasonable costs 
of using type B procedures within a time frame acceptable to the 
authorized official.
    5. The heading of subpart D is revised to read as follows:

Subpart D--Type A Procedures

    6. Section 11.41 is revised to read as follows:


Sec. 11.41  Coastal and marine environments.

    (a) General. The type A procedure for coastal and marine 
environments shall be performed in accordance with this section. The 
procedure requires the use of the Natural Resource Damage Assessment 
Model for Coastal and Marine Environments Version 2.2 (NRDAM/CME), 
which is included and explained in ``CERCLA Type A Natural Resource 
Damage Assessment Model for Coastal and Marine Environments Technical 
Documentation,'' Volumes I-VI, dated October 1994, U.S. Department of 
the Interior (incorporated by reference, see Sec. 11.18). The NRDAM/CME 
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:
    Background (mean) current means the net long-term current flow 
(i.e. one direction only), attributable to forces such as winds, river 
flow, water density, and tides, that remains when all the oscillatory 
(tidal) components have been removed either mathematically or by 
measurement techniques.
    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 Coastal and Marine 
Environments Technical Documentation,'' dated October 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 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 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 due to a 
discharge of oil or a release of a hazardous substance.
    Closure of a furbearer hunting or trapping area means the 
prohibition by an appropriate agency of commercial and recreational 
hunting or trapping of furbearers in a specified area due to a 
discharge of oil or a release of a hazardous substance.
    Closure of a shellfish harvest area means the prohibition by an 
appropriate agency of commercial and recreational harvesting of 
shellfish in a specified area 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 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 due to a discharge of oil or a release of a hazardous substance.
    Coastal or marine environment means any area represented by the 
geographic data contained in the NRDAM/CME, as defined in paragraph (b) 
this section.
    Implicit Price Deflator means the quarterly implicit price deflator 
for the Gross National Product (base year 1987) as provided in the 
Survey of Current Business, published by the U.S. Department of 
Commerce/Bureau of Economic Analysis, 1441 L Street, NW, Washington, 
D.C., 20230, (202) 606-9900.
    Landward fishery or landward shellfish harvest area means a fishery 
or shellfish harvest area in a body of water that is enclosed by land 
and does not contain vegetation (e.g., wetland, seagrass, or kelp) or 
invertebrate reef (e.g., coral reef).
    NRDAM/CME means the Natural Resource Damage Assessment Model for 
Coastal and Marine Environments Version 2.2 (NRDAM/CME), which is 
included and explained in ``CERCLA Type A Natural Resource Damage 
Assessment Model for Coastal and Marine Environments Technical 
Documentation,'' Volumes I-VI, dated October 1994, U.S. Department of 
the Interior (incorporated by reference, see Sec. 11.18). The NRDAM/CME 
is a computer model consisting of integrated physical fates, biological 
effects, restoration, and economic valuation submodels and databases.
    Province means one of the geographic areas delineated in Table 6.1 
of Volume I of ``CERCLA Type A Natural Resource Damage Assessment Model 
for Coastal and Marine Environments Technical Documentation,'' dated 
October 1994, U.S. Department of the Interior (incorporated by 
reference, see Sec. 11.18).
    Seaward fishery or seaward shellfish harvest area means a fishery 
or a shellfish harvest area in a body of water that is not enclosed by 
land and does not contain vegetation (e.g., wetlands, seagrass, or 
kelp) or invertebrate reef (e.g., coral reef).
    Structured fishery or structured shellfish harvest area means a 
fishery or a shellfish harvest area that contains vegetation (e.g., 
wetlands, seagrass, or kelp) or invertebrate reef (e.g., coral reef).
    Tidal current means the alternating rise and fall of the sea level 
caused by the gravitational forces between the earth, moon, and sun.
    Tidal range means the difference between the highest and lowest 
height of the tide.
    (c) Required user-supplied data. (1) The authorized official shall 
supply the incident-specific information described in paragraphs (c)(2) 
through (c)(15) of this section for use as inputs to the NRDAM/CME. 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 Coastal and Marine Environments 
Technical Documentation,'' dated October 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 the 
water 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 the water 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 the water.
    (6) The authorized official shall specify the latitude and 
longitude where the discharged oil or released hazardous substance 
entered the water.
    (7) The authorized official shall specify the estimated wind 
velocity and direction at the point where the discharged oil or 
released hazardous substance entered the water during the 30-day period 
beginning 24 hours before the discharged oil or released hazardous 
substance entered the water. 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 the following information 
concerning currents at the time the discharged oil or released 
hazardous substance entered the water:
    (i) The authorized official shall specify a rectangular geographic 
area encompassing the area affected by the discharge or release stated 
in terms of the northern- and southern-most latitude, and the eastern- 
and western- most longitude.
    (ii) The authorized official shall specify at least one set of data 
concerning the background (mean) current for the area specified 
pursuant to paragraph (c)(8)(i) of this section. Each set of data shall 
consist of: an east-west (U) velocity stated in centimeters per second 
or knots; a north-south (V) velocity stated in centimeters per second 
or knots; and the latitude and longitude of the origin of the U and V 
velocity components within the area specified pursuant to paragraph 
(c)(8)(i) of this section.
    (iii) The authorized official shall specify at least one set of 
data concerning the tidal current at the time of high tide (flood 
stage) for the area specified pursuant to paragraph (c)(8)(i) of this 
section. Each set of data shall consist of: An east-west (U) velocity 
stated in centimeters per second or knots; a north-south (V) velocity 
stated in centimeters per second or knots; and the latitude and 
longitude of the origin of the U and V velocity components within the 
area specified pursuant to paragraph (c)(8)(i) of this section.
    (9) The authorized official shall specify the time at which high 
tide occurred on the date that the discharged oil or released hazardous 
substance entered the water.
    (10) The authorized official shall specify the tidal range at the 
time and point where the discharged oil or released hazardous substance 
entered the water stated in meters.
    (11) The authorized official shall specify whether the tide in the 
area affected by the discharge or release is diurnal (i.e. completes 
one full cycle every day) or semi-diurnal (i.e. completes two full 
cycles every day).
    (12) The authorized official shall specify whether response actions 
were taken to remove the discharged oil or released hazardous substance 
from the water surface or the shoreline. If response actions were taken 
to remove the discharged oil or released hazardous substance, the 
authorized official shall specify the following information:
    (i) For response actions taken to remove the discharged oil or 
released hazardous substance from the water surface, the authorized 
official shall specify:
    (A) One or more rectangular geographic areas encompassing the 
area(s) in which such response actions were taken stated in terms of 
the northern- and southern-most latitude, and the eastern- and western-
most longitude;
    (B) For each area specified pursuant to paragraph (c)(12)(i)(A) of 
this section, one or more time frames for such response actions stated 
in terms of the number of days after the discharged oil or released 
hazardous substance entered the water that the removal began and ended; 
and
    (C) For each time frame specified pursuant to paragraph 
(c)(12)(i)(B) of this section, the volume of the discharged oil or 
released hazardous substance that was removed from the water surface as 
a result of the response actions stated in barrels, gallons, or cubic 
meters.
    (ii) For response actions taken to remove the discharged oil or 
released hazardous substance from the shoreline, the authorized 
official shall specify:
    (A) One or more rectangular geographic areas encompassing the 
area(s) in which such response actions were taken stated in terms of 
the northern- and southern-most latitude, and the eastern- and western-
most longitude;
    (B) For each area specified pursuant to paragraph (c)(12)(ii)(A) of 
this section, one or more time frames for such response actions stated 
in terms of the number of days after the discharged oil or released 
hazardous substance entered the water that the removal began and ended; 
and
    (C) For each time frame specified pursuant to paragraph 
(c)(12)(ii)(B) of this section, the volume of the discharged oil or 
released hazardous substance that was removed from the shoreline as a 
result of the response actions stated in barrels, gallons, or cubic 
meters.
    (13) The authorized official shall specify whether there were any 
closures of boating areas, Federal beaches, State beaches, fisheries, 
shellfish harvest areas, furbearer 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 province in which the closure occurred; the number of 
boats affected by the closure per day; and the number of days of 
closure.
    (ii) For closure of a Federal beach, the authorized official shall 
specify: The province in which the closure occurred; the length closed 
stated in kilometers; and the number of days of closure stated by 
calendar month.
    (iii) For closure of a State beach, the authorized official shall 
specify: The province in which the closure occurred; the length closed 
stated in kilometers; and the number of days of closure stated by 
calendar month.
    (iv) For closure of a fishery, the authorized official shall 
specify: The province in which the closure occurred; the area closed 
stated in square kilometers; the number of days of closure; and whether 
the area closed was a seaward fishery, a landward fishery, or a 
structured fishery.
    (v) For closure of a shellfish harvest area, the authorized 
official shall specify: The province in which the closure occurred; the 
area closed stated in square kilometers; the number of days of closure; 
and whether the area closed was a seaward shellfish harvest area, a 
landward shellfish harvest area, or a structured shellfish harvest 
area.
    (vi) For closure of a furbearer hunting or trapping area, the 
authorized official shall specify: The province in which the closure 
occurred; the area closed stated in square kilometers; and the number 
of days of closure.
    (vii) For closure of a waterfowl hunting area, the authorized 
official shall specify: The province in which the closure occurred; the 
area closed stated in square kilometers; and the number of days of 
closure.
    (14) The authorized official shall specify the Implicit Price 
Deflator for the quarter during which the discharged oil or released 
hazardous substance entered the water.
    (15) For discharges or releases in Alaska, the authorized official 
shall specify whether the NRDAM/CME 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/CME if: The authorized official estimates that conditions 
where the discharged oil or released hazardous substance entered the 
water varied significantly from the typical conditions for the time of 
year in which the discharge or release entered the water; 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/CME 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 the water.
    (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 the 
water.
    (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 the water.
    (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 the water.
    (e) Applying the NRDAM/CME. The authorized official shall apply the 
NRDAM/CME using the incident-specific data supplied pursuant to 
paragraphs (c) and (d) of this section.
    (f) Report of Assessment. After applying the NRDAM/CME, the 
authorized official shall prepare a Report of Assessment, as described 
in Sec. 11.90 of this part.

    Dated: December 2, 1994.
Bonnie R. Cohen,
Assistant Secretary--Policy, Management, and Budget.
[FR Doc. 94-30108 Filed 12-7-94; 8:45 am]
BILLING CODE 4310-RG-P