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. 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. 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 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:

Subpart C—Assessment Plan Phase

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

Subpart D—Type A Procedures

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