[Federal Register Volume 62, Number 217 (Monday, November 10, 1997)]
[Rules and Regulations]
[Pages 60457-60459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29386]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 11

RIN 1090-AA21 & 1090-AA23


Natural Resource Damage Assessments--Type A Procedures

AGENCY: Department of the Interior.

ACTION: Final rule: correcting amendments.

-----------------------------------------------------------------------

SUMMARY: On May 7, 1996, the Department of the Interior published a 
final rule establishing two simplified, or ``type A,'' procedures for 
assessing natural resource damages under the Comprehensive 
Environmental Response, Compensation, and Liability Act. 61 FR 20559. 
Those procedures incorporated two computer models. This rule makes 
several technical corrections to those models.

DATES: This final rule is effective November 10, 1997. The 
incorporation by reference listed in this rule was approved by the 
Director of the Federal Register and is effective November 10, 1997.

FOR FURTHER INFORMATION CONTACT: David Rosenberger at (202) 208-3301. 
Interested parties may obtain copies of the computer models and 
supporting documentation free of charge from the Department through 
February 27, 1998, and thereafter for a fee from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161, ph: 
(703) 487-4650. The models are also on the Internet at http://
www.doi.gov/oepc/oepcbb.html.

SUPPLEMENTARY INFORMATION:

Background

    The Comprehensive Environmental Response, Compensation, and 
Liability Act, as amended (42 U.S.C. 9601 et seq.) (CERCLA) provides 
that certain categories of persons, known as 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). Only those 
Federal, State, and Indian tribe officials designated as natural 
resource trustees may recover natural resource damages. CERCLA requires 
the President to promulgate regulations for the assessment of natural 
resource damages resulting from hazardous substance releases. CERCLA 
sec. 301(c). The President delegated the responsibility for 
promulgating these regulations to the Department. E.O. 12316, as 
amended by E.O. 12580. 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). 
Both types of procedures are codified at 43 CFR part 11.
    On May 7, 1996, the Department published a final rule that revised 
an existing type A procedure for assessing natural resource damages 
from minor releases in coastal areas and established an additional type 
A procedure for minor releases in the Great Lakes. Trustees obtain a 
rebuttable presumption in litigation for damages, up to $100,000, 
calculated in accordance with those procedures. Both procedures 
incorporate computer models. The type A procedure for coastal areas 
incorporates the Natural Resource Damage Assessment Model for Coastal 
and Marine Environments (NRDAM/CME) and the type A procedure for Great 
Lakes incorporates the Natural Resource Damage Assessment Model for 
Great Lakes Environments (NRDAM/GLE). The regulations identify the 
conditions under which trustees may use the models. 43 CFR 11.34.
    Trustees must supply a number of data inputs to operate the NRDAM/
CME and the NRDAM/GLE. After trustees supply the data inputs, the 
models themselves perform the remaining calculations necessary to 
establish if there has been an injury, quantify the extent of injury, 
estimate the cost of restoration actions, and value economic losses.

Programming Errors

    The May 7, 1996, rule incorporated Version 2.4 of the NRDAM/CME and 
Version 1.4 of the NRDAM/GLE. Since the publication of that rule, the 
Department has identified six programming errors in those versions of 
the models.
    First, the models were designed to include in the damage figure the 
cost of

[[Page 60458]]

restoring lost assimilative capacity, under certain circumstances. As 
stated in the preamble to the May 7, 1996, rule, the Department 
intended that the models would compute assimilative capacity 
restoration costs only when there are releases that generate economic 
damages related to mortality or loss of production. 61 FR at 20599. The 
Department has identified a programming error that, in some cases, 
allowed such costs to be incorporated into the tabulation of damages 
even when no economic damages were generated by the models. Currently, 
the models do not provide recovery for compensable value when the 
amount calculated is less than one dollar, but they still include 
restoration costs for lost assimilative capacity when the amount 
calculated is greater than zero but less than one dollar. The 
Department intended that compensable value must actually be generated 
and included in the tabulated damages (i.e., equal or exceed $1) before 
restoration costs for lost assimilative capacity would be included. The 
models' source codes have been corrected to conform with that intent.
    Second, as stated in the preamble to the May 7, 1996, rule, the 
Department decided to delete all pure metals from the models' databases 
(61 FR 20591). Nevertheless, the models as issued still erroneously 
contained copper, mercury, and zinc in their databases. The models' 
databases have been corrected to conform with that decision.
    Third, the Department has discovered an error in the NRDAM/CME's 
source code for indexing the sediment grid array, which causes the 
model to stop when it attempts to reference grid cell ``100/100.'' The 
model's source code has been revised to correct this programming 
``bug.''
    Fourth, the Department has discovered an error in the source code 
of the NRDAM/CME for larval current transport in the longitudinal 
direction, resulting in an erroneous calculation of the location of 
larvae within the habitat grid. The model's source code has been 
revised to correct this programming ``bug.''
    Fifth, the Department has discovered an error in the habitat grid 
editor for the NRDAM/CME. While this error is not in the model's source 
code for computation of damages, it could permit the NRDAM/CME's 
default habitats to accidentally be corrupted or lost by a user's 
attempt to output the data to an ``ASCII'' computer code file. This 
error has been corrected.
    Sixth, although not a programming error, the Department has 
discovered that a reference cited in Volume I, Section 4, of the NRDAM/
CME Technical Document was omitted from the reference list at the end 
of the section, and has made the appropriate correction.
    Finally, the Department has discovered an error in Volume IV, Part 
2, Table IV.5.37 of the NRDAM/CME Technical Document. The table was 
erroneously printed twice at pages IV.5-46 through IV.5-47 and then 
again at pages IV.5-48 through IV.5-49. This typographical error has 
been corrected by removing pages IV.5-46 and IV.5-47 and inserting 
blank pages. Also, the wildlife abundances for willet, knots, 
sanderling, turnstones, plovers (both general and piping) were 
incorrectly listed twice in the April 1996, table. The second listing 
of abundances for these species appearing on page IV.5-49 of the April 
1996, table were those contained in the public review draft of the 
NRDAM/CME. 59 FR 63300. The Department erroneously failed to delete 
those public review draft values when revised abundance values were 
added to the database as a result of public comments. 61 FR 20588. This 
resulted in an overestimate of abundance for willet, knots, sanderling, 
turnstones, plovers (both general and piping); and an underestimate of 
their wildlife nonconsumptive use value contained in Volume V, Table 
V.1.8 (wildlife category 28--Sandpipers, plovers) (See Volume I--Part 
2, Section 8.4 of the NRDAM/CME Technical Document for an explination 
of the derrivation). The NRDAM/CME's database has been revised to 
correct this error.

Windows Operating System

    For the convenience of users of the NRDAM/CME and NRDAM/GLE models, 
the Department has also changed the software installation requirements 
to allow the models to run under the Windows 95 and Windows 
NT operating systems, as well as the current DOS operating 
system. This is a non-substantive change, which does not require a 
change to the source codes and has no effect on the computations 
performed by the models.

Modifications to the Models

    The Department has developed new versions of the models, which 
correct the programming and data base errors described above and make 
the additional change to allow use of the models under the Windows 
95 and Windows NT operating systems. This rule 
replaces the old versions with the new versions: NRDAM/CME Version 2.4 
is being replaced with NRDAM/CME Version 2.5, and NRDAM/GLE Version 1.4 
is being replaced with NRDAM/GLE Version 1.5. In order to obtain the 
rebuttable presumption, trustees must now use the new versions of the 
models.
    The Department has also made conforming changes in the NRDAM/CME 
and NRDAM/GLE Technical Documentation as follows:
    NRDAM/CME Technical Documents. (1) The model version number has 
been changed in all places it appears; (2) The pure metals copper, 
mercury, and zinc have been deleted from Volume III, Table II.2.1; (3) 
The case example contained in Volume II, Appendix D, has been replaced 
to reflect the revised version number and source code corrections; (4) 
A reference cited in Volume I, Section 4, has been added to the 
reference list at the end of the section; (5) Volume VI, containing the 
source code, has been revised to make the necessary corrections; and 
(6) Volume IV, Part 2 has been revised to correct the wildlife 
abundances; and Volume V, Table V.1.8 revised to correct the population 
number and wildlife nonconsumptive use value for wildlife category 28--
Sandpipers, plovers.
    NRDAM/GLE Technical Documents. (1) The model version number has 
been changed in all places it appears; (2) The pure metals copper, 
mercury, and zinc have been deleted from Volume III, Table II.2.1; (3) 
The case example contained in Volume II, Appendix A, has been replaced 
to reflect the revised version number and source code corrections; (4) 
A reference cited in Volume I, Section 4, has been added to the 
reference list at the end of the section; and (5) Volume VI, containing 
the source code, has been revised to make the necessary corrections.

Issuance of a Final Rule

    This rule does not modify any substantive decisions the Department 
made in the May 7, 1996 rulemaking. The technical corrections described 
in this notice are necessary to ensure that NRDAM/CME and NRDAM/GLE 
conform to the descriptions and decisions stated in the May 7, 1996, 
preamble and in the supporting technical documentation for the models. 
The additional changes are also non-substantive in nature. Therefore, 
the Department finds that there is good cause under section 
553(b)(3)(b) of the Administrative Procedure Act (5 U.S.C. 551 et seq.) 
to make these corrections and changes without first issuing a notice of 
proposed rulemaking. For the same reasons, the Department finds that 
there is good cause under section 553(d)(3) of the Administrative 
Procedure Act to make this final rule effective immediately.

[[Page 60459]]

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, Public lands, Recreation 
areas, Seashores, Wildlife, Wildlife refuges.

    For the reasons set out in the preamble, Title 43, Subtitle A of 
the Code of Federal Regulations is 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 paragraphs (a)(4) and 
(a)(5) to read as follows:


Sec. 11.18  Incorporation by reference.

    (a) * * *
    (4) The CERCLA Type A Natural Resource Damage Assessment Model for 
Coastal and Marine Environments, Technical Documentation, Volumes I-VI, 
dated April 1996, including Revision I dated October 1997, prepared for 
the U.S. Department of the Interior by Applied Science Associates, 
Inc., A.T. Kearney, Inc., and Hagler Bailly Consulting, Inc. (NRDAM/CME 
technical document). Interested parties may obtain a copy of this 
document from the National Technical Information Service, 5285 Port 
Royal Road, Springfield, VA 22161; PB96-501788; ph: (703) 487-4650. 
Sections 11.34(a), (b), and (e), 11.35(a), 11.36(b), 11.40(a), and 
11.42(a), and Appendix II refer to this document.
    (5) The CERCLA Type A Natural Resource Damage Assessment Model for 
Great Lakes Environments, Technical Documentation, Volumes I-IV, dated 
April 1996, including Revision I dated October 1997, prepared for the 
U.S. Department of the Interior by Applied Science Associates, Inc., 
and Hagler Bailly Consulting, Inc. (NRDAM/GLE technical document). 
Interested parties may obtain a copy of this document from the National 
Technical Information Service, 5285 Port Royal Road, Springfield, VA 
22161; PB96-501770; ph: (703) 487-4650. Sections 11.34 (a), (b), and 
(e), 11.35(a), 11.36(b), 11.40(a), and 11.42(a), and Appendix III refer 
to this document.
* * * * *

Subpart C--Assessment Plan Phase

    3. Section 11.33(a) is amended by revising the third sentence to 
read as follows:


Sec. 11.33  What types of assessment procedures are available?

* * * * *
    (a) * * * There are two type A procedures: a procedure for coastal 
or marine environments, which incorporates the Natural Resource Damage 
Assessment Model for Coastal and Marine Environments, Version 2.5 
(NRDAM/CME); and a procedure for Great Lakes environments, which 
incorporates the Natural Resource Damage Assessment Model for Great 
Lakes Environments, Version 1.5 (NRDAM/GLE).
* * * * *

Subpart D--Type A Procedures

    4. Section 11.40(a) is amended by revising the third and fifth 
sentences to read as follows:


Sec. 11.40  What are type A procedures?

    (a) * * * The type A procedure for coastal and marine environments 
incorporates a computer model called the Natural Resource Damage 
Assessment Model for Coastal and Marine Environments Version 2.5 
(NRDAM/CME). * * * The type A procedure for Great Lakes environments 
incorporates a computer model called the Natural Resource Damage 
Assessment Model for Great Lakes Environments Version 1.5 (NRDAM/GLE). 
* * *
* * * * *
    Dated: October 31, 1997.
Brooks B. Yeager,
Acting Assistant Secretary--Policy, Management, and Budget.
[FR Doc. 97-29386 Filed 11-7-97; 8:45 am]
BILLING CODE 4310-RG-P