[Federal Register Volume 65, Number 26 (Tuesday, February 8, 2000)]
[Rules and Regulations]
[Pages 6012-6014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2432]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 11

RIN 1090-AA72


Natural Resource Damage Assessments--Type A Procedures

AGENCY:  Department of the Interior.

ACTION:  Final rule: correcting amendments.

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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. The Department made 
a number of technical corrections to the models on November 10, 1997. 
62 FR 60457. This rule makes additional technical corrections to those 
models.

DATES:  This final rule is effective February 8, 2000. The 
incorporation by reference of the publications listed in this rule was 
approved by the Director of the Federal Register as of February 8, 
2000.

FOR FURTHER INFORMATION CONTACT:  David Rosenberger at (202) 208-3301.

[[Page 6013]]

Interested parties may obtain copies of the computer models and 
supporting documentation free of charge from the Department through 
April 28, 2000, 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 Department made a number of 
technical corrections to the models on November 10, 1997. 62 FR 60457. 
The models currently incorporated by reference in the regulations are 
the NRDAM/CME Version 2.5 and the NRDAM/GLE Version 1.5.
    The regulations identify the conditions under which trustees may 
use the models. 43 CFR 11.34. The regulations also specify the data 
inputs trustees must provide 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. Both models include 
four linked submodels: a physical fates submodel, a biological effects 
submodel, a restoration submodel, and a compensable value submodel.

Need for This Rulemaking

    The Department has discovered that the NRDAM/CME Version 2.5 and 
the NRDAM/GLE Version 1.5 are not Y2K compliant. The source codes for 
the models make limited use of dates, instead using time since the 
spill for most calculations. However, the compensable value submodel 
does use the spill year (supplied by the user as a 2-digit number) when 
determining how to discount economic values into present-day terms.
    Test runs of the NRDAM/GLE Version 1.5 showed that the year entry 
``0'' for year 2000 caused the model to enter an infinite loop, such 
that it is unable to run a spill occurring in year 2000. The model 
would run year = 1 for 2001, but the year was incorrectly interpreted 
as 1901. This caused the discounting to be incorrectly calculated. Test 
runs of the NRDAM/CME Version 2.5 showed that, unlike the NRDAM/GLE 
Version 1.5, the year entry ``0'' for year 2000 (or 1, 2, etc. for 
after 2000) allowed the model to run. However, as with the NRDAM/GLE 
Version 1.5, the year was interpreted incorrectly (as 1900), thus 
causing the discounting to be calculated incorrectly.
    The Department has also learned of two non-Y2K related programming 
errors in the models. In the model output text of the NRDAM/GLE Version 
1.5, the implicit price deflator (which is entered by the user and used 
in the discounting calculations) was stated to be relative to 1987, 
when in fact the regulations require that the user supply the implicit 
price deflator relative to 1992. In the NRDAM/CME Version 2.5, a 
problem arose if a user ran the physical fates submodel alone and then 
ran the biological effects and compensable value submodels later. In 
that case, the user interface was not providing the implicit price 
deflator to the biological effects and compensable value submodels, and 
zero was assumed, which caused compensable values to be zeroed out.
    The Department has developed new versions of the models that 
correct these programming errors: the NRDAM/GLE Version 1.51 and the 
NRDAM/CME Version 2.51. The Department is issuing this rule to announce 
the availability of these new versions and to amend the regulations so 
that they incorporate these new versions. In order to obtain the 
rebuttable presumption, trustees must now use the new versions of the 
models.

Changes to the NRDAM/GLE and its Technical Documentation

    To fix the Y2K problem, the Department made two changes in the 
source code for the NRDAM/GLE. First, the infinite loop for year = 0 
was caused by the model simply not accepting a zero entry; therefore, 
the Department changed the source code so that a year greater than or 
equal to zero is acceptable to the model. Second, the Department 
changed the source code so that years from 0 to 49 are interpreted as 
2000 to 2049, while years 50-99 are interpreted as 1950-1999. The 
Department has also changed the source code so that the model output 
text indicates the correct base year (1992) for the implicit price 
deflator.
    The source code for the NRDAM/GLE is included in Volume IV of ``The 
CERCLA Type A Natural Resource Damage Assessment Model for Great Lakes 
Environments, Technical Documentation,'' which is incorporated by 
reference into the regulations. 43 CFR 11.18(a)(5). The Department is 
amending Volume IV with a document entitled ``Revision II,'' and dated 
December 1999, that describes how the source code for the NRDAM/GLE 
Version 1.5 was modified to create the NRDAM/GLE Version 1.51.

Changes to the NRDAM/CME and its Technical Documentation

    To fix the Y2K problem in the NRDAM/CME, the Department changed the 
source code so that years from 0 to 49 are interpreted as 2000 to 2049, 
while years 50-99 are interpreted as 1950-1999. The Department also 
changed the source so that the user interface supplies the implicit 
price deflator to the biological effects and compensable value 
submodels even

[[Page 6014]]

when those submodels are run separately from the physical fates 
submodel.
    The source code for the NRDAM/CME is included in Volume VI of ``The 
CERCLA Type A Natural Resource Damage Assessment Model for Coastal and 
Marine Environments, Technical Documentation,'' which is incorporated 
by reference into the regulations. 43 CFR 11.18(a)(4). The Department 
is amending Volume VI with a document entitled ``Revision II,'' and 
dated December 1999, that describes how the source code for the NRDAM/
CME Version 2.5 was modified to create the NRDAM/CME Version 2.51.

Justification for Issuing a Direct 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 rule 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 nonsubstantive 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.

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, Sea shores, 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, and Revision 
II dated December 1999, 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, and Revision II 
dated December 1999, 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 2.51 
(NRDAM/CME); and a procedure for Great Lakes environments, which 
incorporates the Natural Resource Damage Assessment Model for Great 
Lakes Environments, Version 1.51 (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 2.51 
(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 1.51 (NRDAM/GLE). 
* * *
* * * * *

John Berry,
Assistant Secretary--Policy, Management, and Budget.
[FR Doc. 00-2432 Filed 2-7-00; 8:45 am]
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