Natural Resource Damages for Hazardous Substances, 733-739 [2024-00005]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of the Secretary

[Federal Register Volume 89, Number 4 (Friday, January 5, 2024)]
[Proposed Rules]
[Pages 733-739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00005]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 11

[Docket No. DOI-2022-0016; 4500176944]
RIN 1090-AB26


Natural Resource Damages for Hazardous Substances

AGENCY: Office of Restoration and Damage Assessment, Interior.

ACTION: Notice of proposed rulemaking; request for public comment.

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SUMMARY: The Office of Restoration and Damage Assessment is seeking 
comments and suggestions from State, Tribal, and Federal natural 
resource co-trustees, other affected parties, and the interested public 
on revising the simplified Type A procedures in the regulations for 
conducting natural resource damage assessment and restoration for 
hazardous substance releases.

DATES: We will accept comments through March 5, 2024.
    Information Collection Requirements: If you wish to comment on the 
information collection requirements in this proposed rule, please note 
that the Office of Management and Budget (OMB) is required to make a 
decision concerning the collection of information contained in this 
proposed rule between 30 and 60 days after publication of this proposed 
rule in the Federal Register. Therefore, comments should be submitted 
to the Departmental Information Collection Clearance Officer, U.S. 
Department of the Interior (see ``Information Collection Requirements'' 
section below under ADDRESSES) by March 5, 2024.

ADDRESSES: You may submit comments to Office of Restoration and Damage 
Assessment (ORDA) on this notice of proposed rulemaking (NPRM); request 
for public comment by any of the following methods. Please reference 
the Regulation Identifier Number (RIN) 1090-AB26 in your comments.
     Electronically: Go to https://www.regulations.gov. In the 
``Search'' box enter ``DOI-2022-0016''. Follow the instructions to 
submit public comments. We will post all comments.
     Hand deliver or mail comments to the Office of Restoration 
and Damage Assessment, U.S. Department of the Interior, 1849 C Street 
Northwest, Mail Stop/Room 2627, Washington, DC 20240.
    Information Collection Requirements: Send your comments on the 
information collection request to the Departmental Information 
Collection Clearance Officer, U.S. Department of the Interior, Jeffrey 
Parrillo, 1849 C Street NW, Washington, DC 20240; or by email to 
[email protected]. Please reference OMB Control Number 1090-
AB26 in the subject line of your comments.

FOR FURTHER INFORMATION CONTACT: Emily Joseph, Director, Office of 
Restoration and Damage Assessment at (202) 208-4438 or email to 
[email protected]. Individuals in the United States who are 
deaf, deafblind, hard of hearing, or have a speech disability may dial 
711 (TTY, TDD, or

[[Page 734]]

TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States. In compliance with the Providing Accountability 
Through Transparency Act of 2023, the plain language summary of the 
proposal is available on Regulations.gov in the docket for this 
rulemaking.

SUPPLEMENTARY INFORMATION: This preamble is organized as follows:

I. Background
    What These Natural Resource Damage Type A Regulations Are About
II. Description of Changes
    Why We Are Proposing To Revise the Type A Parts of the 
Regulations
III. Major Issues Addressed by the Proposed Revisions
    a. Specifying When a Type A Procedure May Be Used
    b. Increasing the Damages Amount for Which Type A Can Be Used
    c. Identifying Which Scenarios Allow for the Use of Type A

Required Determinations

I. Background

What These Natural Resource Damage Type A Regulations Are About

    The regulations describe how to conduct a natural resource damage 
assessment and restoration (NRDAR) for hazardous substance releases 
under the Comprehensive Environmental Response, Compensation, and 
Liability Act (42 U.S.C. 9601, 9607) (CERCLA) and the Federal Water 
Pollution Control Act (33 U.S.C. 1251, 1321) (Clean Water Act). CERCLA 
required the President to promulgate these regulations. 42 U.S.C. 
9651(c). The President delegated this rule writing responsibility to 
the Department of the Interior (DOI). E.O. 12316, as amended by E.O. 
12580. The regulations appear at 43 CFR part 11.
    A natural resource damage assessment is an evaluation of the need 
for, and the means of, securing restoration of public natural resources 
following the release of hazardous substances or oil into the 
environment. The Department of the Interior has previously developed 
two types of natural resource damage assessment regulations: Standard 
procedures for simplified assessments requiring minimal field 
observations (Type A Rule); and site-specific procedures for detailed 
assessments in individual cases (Type B Rule). The Type A Rule was last 
revised in November 1997. It provides two distinct formulas for 
modeling damages for natural resource injuries caused by hazardous 
substance releases to coastal and marine environments and Great Lakes 
environments, respectively. In accordance with the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980, as 
amended (CERCLA) 42 U.S.C. 9601 et seq., damages calculated in 
accordance with Type A or Type B procedures are entitled to a 
``rebuttable presumption'' of correctness in any administrative or 
judicial proceeding. The rebuttable presumption for the Type A 
procedure under the current version of the rule is limited to damages 
of $100,000 or less.
    The regulations we are proposing to revise only cover natural 
resource damage assessments for releases of hazardous substances under 
CERCLA and the Clean Water Act. There are also natural resource damage 
assessment regulations at 15 CFR part 990 that cover oil spills under 
the Oil Pollution Act, 33 U.S.C. 2701, (the OPA regulations). The 
current hazardous substance natural resource damage assessment and 
restoration regulations, this preamble, and the proposed revisions to 
the regulation use ``restoration'' as an umbrella term for all types of 
actions CERCLA and Clean Water Act authorize to address injured natural 
resources, including restoration, rehabilitation, replacement, or 
acquisition of equivalent resources.
    Natural resource damage assessments are conducted by government 
officials designated to act as ``trustees'' to bring claims on behalf 
of the public for the restoration of injured natural resources. 
Trustees are designated by the President, State governors, or Tribes. 
If trustees determine, through an assessment, that hazardous substance 
releases have injured natural resources, they may pursue claims for 
damages against potentially responsible parties. ``Damages'' include 
funds needed to plan and implement restoration, compensation for public 
losses pending restoration, reasonable assessment costs, and any 
interest accruing after funds are due.
    The regulations establish an administrative process for conducting 
assessments that include technical criteria for determining whether 
releases have caused injury, and if so, what funds are needed to 
implement restoration. The regulations are for the optional use of 
trustees. Trustees can use the regulations to structure damage 
assessment work, frame negotiations, and inform restoration planning. 
If litigation is necessary to resolve the claim, courts will give 
additional deference--referred to as a ``rebuttable presumption'' in 
CERCLA--to assessments performed by Federal and State trustees in 
accord with the regulations.

II. Description of Changes

Why We Are Proposing To Revise the Regulations

    Since its promulgation, the Type A Rule has rarely been utilized to 
resolve CERCLA Natural Resource Damage Assessment and Restoration 
(NRDAR) claims. This may be partly due to the Type A Rule's restrictive 
scope--to two specific aquatic environments when relatively low-impact, 
single substance spills occur. Additionally, the model equation for 
each Type A environment is the functional part of the rule itself--with 
no provisions to reflect evolving toxicology, ecology, technology, or 
other scientific understanding without a formal amendment to the Type A 
Rule each time a parameter is modified. The result is an inefficient 
and inflexible rule that is not currently useful as a means to resolve 
NRDAR claims and promote natural resource restoration. For these 
reasons, the Department is now seeking to modernize the Type A process 
and develop a more flexible and enduring rule than what is provided by 
the two existing static models.
    The Department is proposing to re-formulate the Type A Rule as a 
procedural structure for negotiated settlements by utilizing tools 
tailored to incidents of smaller scale and scope. We believe that this 
aligns better with the original statutory purpose of providing a 
streamlined and simplified assessment process as a companion to the 
more complex Type B Rule--to reduce transaction costs and expedite 
restoration in a broader range of less complex and contentious cases. 
Our objective is to essentially formalize beneficial practices that 
have evolved since the 1997 promulgation of the Type A Rule. 
Specifically, Trustees have utilized well-established methodologies 
such as habitat equivalency analysis (HEA), resource equivalency 
analysis (REA), and other relatively simple models to assess natural 
resource injury in smaller incidents that do not necessarily warrant 
the more prescriptive Type B procedures.

III. Major Issues Addressed by the Proposed Revisions

    Our proposed revisions would largely leave the framework of the 
existing rule intact. We are not proposing any substantive changes to 
legal standards for reliability of assessment data and methodologies. 
The rest of this section discusses the major issues addressed by the 
proposed revisions. The following

[[Page 735]]

section references the OPA regulations. These references are solely for 
the purpose of providing context and background. We are soliciting 
comments only on the proposed revisions to the CERCLA Type A 
regulations. For guidance on conducting natural resource damage 
assessments under OPA, see 15 CFR part 990.
a. Specifying When a Type A Procedure May Be Used
    The Trustee has decided that existing models (for replacement of 
resources or habitats, equivalency analysis, recreational losses, 
benefits transfer, etc.) are appropriate for determining damages to 
fund restoration activities at the site.
b. Increasing the Damages Amount for Which Type A Can Be Used
    Either (i) the claim that will be resolved using the Type A 
procedure is expected to be less than $3 million (excluding reasonable 
assessment costs); or (ii) the claim relates to injury resulting from a 
hazardous substance release over a relatively short period of time 
(e.g., a discrete spill) with a small number of potentially responsible 
parties and is expected to be less than $5 million.
c. Identifying Which Scenarios Allow for the Use of Type A
    At least one PRP has voluntarily agreed to utilize the Type A and a 
tolling agreement for at least one year is in place.

IV. Required Determinations

Regulatory Planning and Review--Executive Orders 12866, E.O. 13563, and 
14094

    Executive Order 12866, as amended by Executive Order 14094, 
provides that the Office of Information and Regulatory Affairs (OIRA) 
in the Office of Management and Budget (OMB) will review all 
significant rules. OIRA has determined that this proposed rule is not 
significant. Executive Order 14094 amends E.O. 12866 and reaffirms the 
principles of E.O. 12866 and E.O. 13563 and states that regulatory 
analysis should facilitate agency efforts to develop regulations that 
serve the public interest, advance statutory objectives, and be 
consistent with E.O. 12866, E.O. 13563, and the Presidential Memorandum 
of January 20, 2021 (Modernizing Regulatory Review).
    These revisions do not fall under other criteria in E.O. 12866:
    a. This rule will not have an annual economic effect of $200 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government.
    The regulations we are revising apply only to natural resource 
trustees by providing technical and procedural guidance for the 
assessment of natural resource damages under CERCLA and the Clean Water 
Act. The revisions are not intended to change the balance of legal 
benefits and responsibilities among any parties or groups, large or 
small. It does not directly impose any additional cost. In fact, we 
believe the proposed revisions can help reduce natural resource damage 
assessment transaction costs by allowing trustees to utilize simpler 
and more transparent methodologies to assess damages when appropriate. 
The proposed revisions do not sanction or bar the use of any particular 
methodology, so long as it meets the acceptance criteria for relevance 
and cost effectiveness that is set out in the rule. Of course, in 
litigation, any methodology used would be evaluated by courts to 
further ensure relevance and reliability.
    We also believe that in many cases an early focus on feasible 
restoration and appropriate restoration actions, rather than on the 
monetary economic value of public losses, can result in less contention 
and litigation and faster, more cost-effective restoration. Meanwhile, 
existing criteria in the rule for evaluating restoration alternatives--
including cost effectiveness--remain intact (see 43 CFR 11.82(d)). The 
likely result will be the encouragement of settlements, less costly and 
more timely restoration, and reduced transaction costs. To the extent 
any are affected by the proposed revisions, it is anticipated that all 
parties will benefit by increasing the focus on restoration in lieu of 
monetary damages.
    b. The proposed revisions will not create inconsistencies with 
other agencies' action. The general approach to losses pending 
restoration set forth in this rule is consistent with the OPA 
regulations. Both allow for basing damages on the cost of restoration 
actions to address public losses associated with natural resource 
injuries.
    Regulatory analysis, as practicable and appropriate, shall 
recognize distributive impacts and equity, to the extent permitted by 
law. E.O. 13563 emphasizes further that regulations must be based on 
the best available science and that the rulemaking process must allow 
for public participation and an open exchange of ideas. We have 
developed this proposed rule in a manner consistent with these 
requirements. This proposed rule is consistent with E.O. 13563, 
including with the requirement of retrospective analysis of existing 
rules, designed ``to make the agency's regulatory program more 
effective or less burdensome in achieving the regulatory objectives.''

Regulatory Flexibility Act

    We certify that this rule revision will not have a significant 
economic effect on a substantial number of small entities as defined 
under the Regulatory Flexibility Act (5 U.S.C. 601) (see Regulatory 
Planning and Review--Executive Orders 12866, E.O. 13563, and 14094 
section above for discussion of potential economic effects).

Congressional Review Act

    This rule revision is not a major rule under the Congressional 
Review Act (5 U.S.C. 804(2)). This rule revision:
    (a) Does not have an annual effect on the economy of $100 million 
or more (see Regulatory Planning and Review--Executive Orders 12866, 
E.O. 13563, and 14094 section above for discussion of potential 
economic effects).
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions (see Regulatory Planning and Review--
Executive Orders 12866, E.O. 13563, and 14094 section above for 
discussion of potential economic effects).
    (c) Does not have significant adverse effect on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises (see 
Regulatory Planning and Review-- Executive Orders 12866, E.O. 13563, 
and 14094 section above for discussion of potential economic effects).

Unfunded Mandates Reform Act

    This rule revision does not mandate any actions. The existing 
regulations do not require trustees to conduct assessment or pursue 
damage claims, and trustees who choose to conduct assessments and 
pursue damage claims are not required to do so in a manner described in 
the regulations. The proposed revisions do not change the optional 
nature of the existing regulations. The revisions themselves do not 
replace existing procedures, they merely give trustees the option of 
employing other procedures. Therefore, this rule revision will not 
produce a Federal mandate of $100 million or greater in any year.

Takings Analysis Under E.O. 12630

    A takings implication assessment is not required by E.O. 12630 
because no party can be compelled to pay damages

[[Page 736]]

for injury to natural resources until they have received ``due 
process'' through a legal action in Federal court. This rule and the 
proposed revisions merely provide a framework for assessing injury and 
developing the claim.

Federalism (E.O. 13132)

    Federal agencies are required to consult with elected State 
officials before issuing proposed rules that have ``federalism 
implications'' and either impose unfunded mandates or preempt State 
law. A rule has federalism implications if it has ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' The NRDAR 
regulations are already in compliance with E.O. 13132, and this rule 
does not alter that status. Specifically, this rule does not require 
State trustees to take any action; therefore, it does not impose any 
unfunded mandates. The States already have maximum administrative 
discretion and the ability to develop their own NRDAR policies and 
programs, which many have implemented (compliance with sections 2 and 3 
of E.O. 13132). The rule has no significant effect on intergovernmental 
relations because it does not alter the rights and responsibilities of 
government entities (section 3). The rule does not preempt State law 
(section 4). If trustees elect to use this rule to assess natural 
resource damages, there is a consultation requirement with other 
affected trustees, which is not significantly different from the 
current rule (section 6). Therefore, a federalism summary impact 
statement is not required under section 6 of the Executive Order. In 
the spirit of the E.O., though, State trustees, who are representatives 
of State elected officials, were given the opportunity to respond to 
the proposed revisions as part of the public comment period. In 
addition, ORDA discussed the revisions with the NRDAR State Alliance 
and at our national workshop.

Civil Justice Reform Under E.O. 12988

    Our Office of the Solicitor has determined that the proposed 
revisions do not unduly burden the judicial system and meet the 
requirements of section 3(a) and 3(b)(2) of the E.O. The proposed 
revisions are intended to provide the option for an early focus on 
restoration, utilization of simpler and more cost-effective assessment 
methodologies, and increased opportunities for cooperation among 
trustees and potentially responsible parties. This should minimize 
litigation.

Consultation With Indian Tribes (E.O. 13175 and Departmental Policy)

    Tribes were given the opportunity to respond to the proposed 
revisions as part of the public comment period. In addition, we 
discussed the revisions with our NRDAR Tribal Group on our monthly 
calls and at our national workshop. We also plan to invite all Tribes 
to participate in one of the monthly calls to discuss the proposed 
revisions.

Paperwork Reduction Act (44 U.S.C. 3501 et seq.)

    This proposed rule contains existing information collections (ICs) 
which were in use without approval. All information collections require 
approval under the Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501 
et seq.). We may not conduct or sponsor and you are not required to 
respond to a collection of information unless it displays a currently 
valid Office of Management and Budget (OMB) control number. We will ask 
OMB to review and approve the below listed ICs contained in 43 CFR part 
11:
    (1) Type A Report (Existing/Modified)--If a Type A is used, the 
Report already must include the information specified in subpart D (43 
CFR 11.90(b)). This rulemaking seeks to clarify the content of the Type 
A Report based on the proposed changes in the sections itemized below. 
The Type A report must be made available to the public and provide for 
a comment period of at least 30 days.
    Information collected in a Type A Report includes:
    (a) The Type A Report is a document to provide the public with 
notice of, and an opportunity to comment on, the use of the Type A 
Procedure.
    (b) The Type A Report must:
    (1) State that the Trustee is following this rule and provide a 
citation to the rule;
    (2) Explain the basis for concluding that conditions for pursuing 
an assessment were met;
    (3) Describe any agreements among Co-Trustees and potentially 
responsible parties;
    (4) Identify ongoing or planned response activities that could 
affect the natural resources being assessed;
    (5) Explain how conditions for using a Type A Procedure listed in 
11.34 of this part are met;
    (6) Identify and describe the model(s) selected to determine 
damages to fund restoration activities, including the following;
    (i) Data inputs and the assumptions used for the model(s);
    (ii) Possible existing restoration alternatives that make these 
model assumptions valid for the purpose of restoration;
    (iii) Results of the modeling exercise;
    (7) Note the establishment of an administrative record for the 
assessment and explain how to gain access to that record;
    (8) Explain how to submit comments and state the deadline for 
comments; and
    (9) Identify a contact person.
    Administrative Record for Type A Report includes:
    (a) Evidence of efforts to coordinate with response agencies (this 
need not include any evidence of the substance of discussions, nor 
documentation of every contact);
    (b) Evidence of efforts to consult with other Co-trustees (this 
need not include any evidence of the substance of discussions, nor 
documentation of every contact) and documentation of any agreements 
among Co-trustees;
    (c) The invitation to potentially responsible parties inviting them 
to participate in the Type A Procedure and documentation of any 
agreements reached with potentially responsible parties.
    (d) Information considered when developing data inputs and 
assumptions for modeling, including complete citations to any 
literature used;
    (e) A printout of the model(s) sufficient for reproducibility (or a 
copy of the file used to generate the model(s));
    (f) Documentation of any assessment costs incurred, if Trustees 
plan to seek reimbursement of such costs.
    (g) Copy of the final Type A Report and each published version of 
the Type A Report.
    Revising Type A Report:
    (d) If the Trustees decide after their review to select different 
model(s), or substantially change the model data inputs or assumptions 
to conduct the Type A Procedure, the Trustees must prepare a revised 
Type A Report that reflects the changes, provides any new information 
about the modified data inputs and assumptions, and substantively 
responds to significant comments received during the comment period. 
Minor changes require a statement of explanation of the changes, 
explanation of why they are not considered substantial, and discussion 
of any effects on results to be appended to the original Type A Report.
    Revision to Existing IC in Proposed Rulemaking: The information to 
be included in the modified and/or revised

[[Page 737]]

Type A Report will allow for a wider range of models to be used as 
opposed to the ones currently listed which focus on Coastal and Marine 
Environments and the Great Lakes Environments exclusively. These 
changes will allow Trustees to use a variety of models and include 
their results in the Type A Report.
    (2) Type B Report of Assessment (Existing)--The completion of an 
assessment is documented in the Report of Assessment (ROA), which 
consists of the Preliminary Assessment Screen (PAS), Preliminary 
Estimate of Damages (PED), Assessment Plan (AP), Restoration and 
Compensation Determination Plan (RCDP), Restoration Plan (RP; when 
prepared for settlement), and response to public comments:
     The PAS is a rapid review of readily available information 
to make a determination as to whether an NRDAR will be carried out (43 
CFR 11.23, 11.24 and 11.25).
     The purpose of the PED is to inform the Assessment Plan to 
ensure that the choice of the scientific, cost estimating, and 
valuation methodologies expected to be used in the NRDAR are reasonable 
cost. The PED typically relies on available information (43 CFR 11.38).
     The AP must identify and document the use of all of the 
Type A and/or Type B procedures that will be performed, including any 
proposed injury studies, as well as potential studies to identify early 
restoration opportunities and potential effectiveness. The AP is 
published for public comment (43 CFR part 11 subpart C).
     The RCDP provides a reasonable number of possible 
restoration alternatives, identifies the preferred one and the actions 
required for implementation, and describes the methods and results of 
the injury determination, injury quantification, and damages 
determination (monetary or in-kind projects). The RCDP uses literature, 
site data, and study data, and Trustees' decision making; it is 
published for public comment (43 CFR 11.81).
     Although the RP is identified as part of a post-assessment 
activity, ORDA addressed Departmental and Congressional interest in 
timely restoration through policy by defining a ``restoration-based 
settlement'' to include a legally binding Consent Decree and concurrent 
final Restoration Plan. Therefore, the RP may be produced before or 
after settlement, and is published for public comment. The level of 
effort on a post-settlement RP is assumed to be the same as for 
settlement. For purposes of this ICR, the RP is considered to be part 
of the Type B ROA (43 CFR 11.93; ORDA Restoration Policy).
    Title of Collection: Natural Resource Damage Assessments (43 CFR 
part 11).
    OMB Control Number: 1090-New.
    Form Number: None.
    Type of Review: New.
    Respondents/Affected Public: Private sector (consultants and 
potentially responsible parties) and State and Tribal governments.
    Total Estimated Number of Annual Respondents: 10.
    Total Estimated Number of Annual Responses: 155.
    Estimated Completion Time per Response: Varies from 40 hours to 
18,627.45 hours, depending on activity.
    Total Estimated Number of Annual Burden Hours: 513,926.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion.
    Total Estimated Annual Nonhour Burden Cost: None.
    As part of our continuing effort to reduce paperwork and respondent 
burdens, we invite the public and other Federal agencies to comment on 
any aspect of this information collection, including:
    (1) Whether or not the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether or not the information will have practical utility;
    (2) The accuracy of our estimate of the burden for this collection 
of information, including the validity of the methodology and 
assumptions used;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) Ways to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of response.
    Written comments and suggestions on the information collection 
requirements should be submitted by the date specified above in DATES 
to https://www.reginfo.gov/public/do/PRAMain. Find this particular 
information collection by selecting ``Currently under Review--Open for 
Public Comments'' or by using the search function. Please provide a 
copy of your comments to Departmental Information Collection Clearance 
Officer, U.S. Department of the Interior, Jeffrey Parrillo, 1849 C 
Street NW, Washington, DC 20240; or by email to 
[email protected]. Please reference OMB Control Number 1090-
AB26 in the subject line of your comments.

National Environmental Policy Act

    We have analyzed the proposed revisions in accordance with the 
criteria of the National Environmental Policy Act, 43 U.S.C. 433 et 
seq. (NEPA). Restoration actions identified through the proposed 
revisions may sometimes involve major Federal action significantly 
affecting the quality of the human environment. In those cases, Federal 
trustees will need to comply with NEPA. However, the proposed revisions 
do not require trustees to take restoration action. Further, if the 
trustees decide to pursue restoration, they are not required to follow 
the rule when selecting restoration actions. Finally, the rule and the 
proposed revisions do not determine the specific restoration actions 
that trustees can seek. Therefore, the rule and the proposed revisions 
do not significantly affect the quality of the human environment. Even 
if the rule revisions were considered to significantly affect the 
quality of the human environment, they would fall under DOI's 
categorical exclusion for regulations that are of a procedural nature 
or have environmental effects too broad or speculative for meaningful 
analysis and will be subject later to the NEPA process.

Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action because it
    (1) is not a significant regulatory action under E.O. 12866; and
    (2) is not likely to have a significant adverse effect on the 
supply, distribution or use of energy or is designated by the 
Administrator of OMB/OIRA as a significant energy action.
    Releases of hazardous substances can adversely affect the supply, 
distribution, or use of various types of energy. This rulemaking 
provides simplified procedures to conduct NRDAR activities under CERCLA 
due to releases of hazardous substances and restore the injured natural 
resources which may supply energy. A Statement of Energy Effects is not 
needed.

Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized,

[[Page 738]]

    (2) Use the active voice to address readers directly.
    (3) Use clear language rather than jargon,
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Public Availability of Comments

    Before including your address, phone number, email address or other 
personal identifying information in your comment, you should be aware 
that your entire comment--including your personal identifying 
information--might be made publicly available at any time. While you 
may ask us in your comment to withhold your personal identifying 
information from public review we cannot guarantee that we will do so.

List of Subjects in 43 CFR Part 11

    Assessment procedures, Natural resource damages, Potentially 
responsible parties, Trustees.

Words of Issuance

    For the reasons discussed in the preamble, the Department of the 
Interior proposes to amend 43 CFR part 11 as follows:

PART 11--NATURAL RESOURCE DAMAGE ASSESSMENTS

0
1. The authority citation for part 11 continues to read as follows:

    Authority:  42 U.S.C. 9651(c), as amended.

0
2. Revise Sec. Sec.  11.33 through 11.37 to read as follows:

Sec.
* * * * *
11.33 What types of assessment procedures are available?
11.34 When may a Trustee use a Type A procedure?
11.35 How does the Trustee decide whether to use Type A or Type B 
procedures?
11.36 May the Trustee use both a Type A and Type B procedure for the 
same release?
11.37 Must the Trustee confirm exposure before implementing the Type 
B Assessment Plan?
* * * * *


Sec.  11.33   What types of assessment procedures are available?

    There are two types of assessment procedures:
    (a) Type A procedures are simplified procedures that require 
minimal field observation. Subpart D of this part describes the Type A 
procedures.
    (b) Type B procedures require more extensive field observation than 
the Type A procedures. Subpart E of this part describes the Type B 
procedures.


Sec.  11.34   When may a Trustee use a Type A procedure?

    A Trustee may use a Type A procedure if all of the following are 
satisfied:
    (a) The Trustee has decided that existing models (for replacement 
of resources or habitats, equivalency analysis, recreational losses, 
benefits transfer, etc.) are appropriate for determining damages to 
fund restoration activities at the site.
    (b) All Federal, State, and Tribal trustees with probable 
jurisdiction over the injured natural resources who have elected to 
participate in the claim concur in the use of the Type A procedure in 
the circumstances presented;
    (c) Either the claim that will be resolved using the Type A 
procedure is expected to be less than $3 million (excluding reasonable 
assessment costs); or the claim relates to injury resulting from a 
hazardous substance release over a relatively short period of time 
(e.g., a discrete spill) with a small number of potentially responsible 
parties and is expected to be less than $5 million;
    (d) At least one potentially responsible party has voluntarily 
agreed to utilize the Type A procedure. If a claim involves multiple 
potentially responsible parties (PRPs), the Type A process may not be 
appropriate unless resolution of the claim involves all significant 
PRPs, or the resolution of the claim represents a final settlement of 
the claim for injury to specific natural resources at the site.
    (e) The PRP agrees to toll the running of the statutory limitations 
period for filing the claim for at least one year and to reimburse the 
trustees for reasonable Type A assessment costs until the claim is 
resolved or the PRP gives formal notice of withdrawal from voluntary 
participation in the Type A procedure.


Sec.  11.35   How does the Trustee decide whether to use Type A or Type 
B procedures?

    (a) If the Trustee determines under Sec.  11.34 that a Type A 
procedure is available, the Trustee must then decide whether to use 
that procedure or use a Type B procedure. The Trustee must make this 
decision by weighing the difficulty of collecting site-specific data 
against the suitability of the averaged data and simplifying 
assumptions in the Type A procedure for the release being assessed. The 
Trustee may use a Type B procedure if they can be performed at a 
reasonable cost and if the increase in accuracy provided by those 
procedures outweighs the increase in assessment costs.
    (b) If there is no appropriate Type A procedure, the Trustee must 
use a Type B procedure to calculate all damages.


Sec.  11.36   May the Trustee use both a Type A and Type B procedure 
for the same release?

    (a) The Trustee may use both a Type A procedure and Type B 
procedure for the same release if:
    (1) The Type B procedure is cost-effective and can be performed at 
a reasonable cost;
    (2) There is no double recovery; and
    (3) The Type B procedure is used only to determine damages for 
injuries or compensable values that do not fall into the categories 
addressed by the Type A procedure.
    (b) The Type A procedure addresses the following categories of 
injury and compensable value:
    (1) Lethal and sub-lethal injuries to individual organisms within 
discrete species or guilds;
    (2) Injuries to habitat and ecological productivity;
    (3) Impairments to human use, cultural use, and enjoyment of 
natural resources;
    (c) If a Trustee elects to use both a Type A procedure and a Type B 
procedure, the Assessment Plan must explain how the double recovery 
will be prevented.
    (d) When the Trustee uses a Type B procedure for injuries not 
addressed in a Type A procedure, they must follow all of subpart E of 
this part (which contains standards for determining and quantifying 
injury as well as determining damages), Sec.  11.31(c) (which addresses 
content of the Assessment Plan), and Sec.  11.37 (which addresses 
confirmation of exposure). When the Trustee uses a Type B procedure for 
compensable values that are not included in a Type A procedure but that 
result from injuries that are addressed in the Type A procedure, they 
need not follow all of subpart E, Sec.  11.31(c), and Sec.  11.37. 
Instead, the Trustee may rely on the injury predictions of the Type A 
procedure and simply use the valuation methodologies authorized by 
Sec.  11.83(c) to calculate compensable value. When using valuation 
methodologies, the Trustee must comply with Sec.  11.84.

[[Page 739]]

Sec.  11.37   Must the Trustee confirm exposure before implementing the 
Type B Assessment Plan?

    (a) Before including any Type B methodologies in the Assessment 
Plan, the Trustee must confirm that at least one of the natural 
resources identified as potentially injured in the preassessment screen 
has in fact been exposed to the released substance.
    (b) Whenever possible, exposure shall be confirmed by using 
existing data, such as those collected for response actions by the On-
Scene Coordinator, or other available studies or surveys of the 
assessment area.
    (c) Where sampling has been done before the completion of the 
preassessment screen, chemical analyses of such samples may be 
performed to confirm that exposure has occurred.
    (d) Where existing data are unavailable or insufficient to confirm 
exposure, one or more of the analytical methodologies provided in the 
Injury Determination phase may be used.
    (e) Type B assessment methodologies shall be included in the 
Assessment Plan only upon meeting the requirements of this section.
0
3. Revise subpart D to read as follows:
Subpart D--Using the Type A Procedures
Sec.
11.40 How does a Trustee use the Type A Procedure?
11.41 What information is included in a Type A Report?
11.42 What documents must be in the Administrative Record when the 
Type A Report is published?
11.43 What is the process for Type A Report comments?
11.44 How do the Trustees conclude the Type A Procedure?

Subpart D--Using the Type A Procedures


Sec.  11.40   How does a Trustee use the Type A Procedure?

    Once a Trustee has decided that the Type A Procedure is appropriate 
to resolve a claim and the potentially responsible party has agreed to 
utilize the Type A Procedure, the Trustee should notify and invite 
other affected Co-trustees to participate in the Type A Procedure. The 
Type A Procedure must be documented in a Type A Report.


Sec.  11.41   What information is included in a Type A Report?

    (a) The Type A Report is a document to provide the public with 
notice of, and an opportunity to comment on, the use of the Type A 
Procedure.
    (b) The Type A Report must:
    (1) State that the Trustee is following this rule and provide a 
citation to the rule;
    (2) Explain the basis for concluding that conditions for pursuing 
an assessment were met;
    (3) Describe any agreements among Co-Trustees and potentially 
responsible parties;
    (4) Identify ongoing or planned response activities that could 
affect the natural resources being assessed;
    (5) Explain how conditions for using a Type A Procedure listed in 
Sec.  11.34 are met;
    (6) Identify and describe the model(s) selected to determine 
damages to fund restoration activities, including the following;
    (i) Data inputs and the assumptions used for the model(s);
    (ii) Possible existing restoration alternatives that make these 
model assumptions valid for the purpose of restoration;
    (iii) Results of the modeling exercise;
    (7) Note the establishment of an administrative record for the 
assessment and explain how to gain access to that record;
    (8) Explain how to submit comments and state the deadline for 
comments; and
    (9) Identify a contact person.
    (c) The Type A report must be made available to the public and 
provide for a comment period of at least 30 days.


Sec.  11.42   What documents must be in the Administrative Record when 
the Type A Report is published?

    (a) Evidence of efforts to coordinate with response agencies (this 
need not include any evidence of the substance of discussions, nor 
documentation of every contact);
    (b) Evidence of efforts to consult with other Co-trustees (this 
need not include any evidence of the substance of discussions, nor 
documentation of every contact) and documentation of any agreements 
among Co-trustees;
    (c) The invitation to potentially responsible parties inviting them 
to participate in the Type A Procedure and documentation of any 
agreements reached with potentially responsible parties.
    (d) Information considered when developing data inputs and 
assumptions for modeling, including complete citations to any 
literature used;
    (e) A printout of the model(s) sufficient for reproducibility (or a 
copy of the file used to generate the model(s));
    (f) Documentation of any assessment costs incurred, if Trustees 
plan to seek reimbursement of such costs.
    (g) Copy of the final Type A Report and each published version of 
the Type A Report.


Sec.  11.43   What is the process for Type A Report comments?

    (a) Comments received during the comment period must be placed in 
the Administrative Record and reviewed by the Trustees.
    (b) If the Trustees decide after their review that no changes to 
the Type A Report are needed, the Trustees must publish a notice that:
    (1) States that the Type A Report has been finalized; and
    (2) Provides substantive responses to significant comments received 
during the comment period.
    (c) If the Trustees decide after their review that it is 
inappropriate to use the Type A Procedure, the Trustees may decide to 
use a Type B Procedure for the assessment or stop the assessment.
    (d) If the Trustees decide after their review to select different 
model(s), or substantially change the model data inputs or assumptions 
to conduct the Type A Procedure, the Trustees must prepare a revised 
Type A Report that reflects the changes, provides any new information 
about the modified data inputs and assumptions, and substantively 
responds to significant comments received during the comment period. 
Minor changes require a statement of explanation of the changes, 
explanation of why they are not considered substantial, and discussion 
of any effects on results to be appended to the original Type A Report.
    (e) The Trustees must provide an additional comment period of at 
least 30 days for a revised Type A Report.


Sec.  11.44   How do the Trustees conclude the Type A Procedure?

    (a) After the Type A Report is finalized, Trustees may enter into a 
settlement agreement with potentially responsible parties.
    (b) Damages to fund or undertake restoration activities must be 
utilized pursuant to a publicly reviewed Restoration Plan consistent 
with subpart F of this part.
    (c) The comment period for Administrative Settlement Agreements, 
Consent Decrees, and Restoration Plans may run concurrently with the 
comment period for the Type A Report, if appropriate.

Joan M. Mooney,
Principal Deputy Assistant Secretary, Exercising the Delegated 
Authority of the Assistant Secretary--Policy, Management and Budget.
[FR Doc. 2024-00005 Filed 1-4-24; 8:45 am]
BILLING CODE 4334-63-P