[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
