Natural Resource Damage Assessments

DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 11

RIN 1090-AA43

Natural Resource Damage Assessments

AGENCY: Department of the Interior.

ACTION: Proposed rule; extension of comment period.

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SUMMARY: On May 4, 1994, the Department of the Interior issued a notice

of proposed rulemaking (59 FR 23097) to revise the natural resource

damage assessment regulations. The natural resource damage assessment

regulations establish procedures for assessing damages for injury to

natural resources resulting from a discharge of oil into navigable

waters under the Clean Water Act, or a release of a hazardous substance

under the Comprehensive Environmental Response, Compensation, and

Liability Act. The Department is extending the period for comment on

the proposed rule.

DATES: Comments will be accepted through October 7, 1994.

ADDRESSES: Comments should be sent in duplicate to the Office of

Environmental Policy and Compliance, ATTN: NRDA Rule--Nonuse Values,

room 2340, Department of the Interior, 1849 C Street NW., Washington,

DC 20240 (regular business hours 7:45 a.m. to 4:15 p.m., Monday through

Friday).

FOR FURTHER INFORMATION CONTACT:

Mary C. Morton or David Rosenberger at (202) 208-3301, or

[email protected] on Internet.

SUPPLEMENTARY INFORMATION: The natural resource damage assessment

regulations establish procedures for calculating damages for natural

resource injuries under the Comprehensive Environmental Response,

Compensation, and Liability Act, as amended (42 U.S.C. 9601 et seq.)

and the Clean Water Act, as amended (33 U.S.C. 1251 et seq.). The

regulations provide an administrative process for conducting

assessments as well as two types of technical procedures for the actual

determination of injuries and damages. ``Type A'' procedures are

standard procedures for simplified assessments requiring minimal field

observation in cases of minor discharges or releases in certain

environments. ``Type B'' procedures are site-specific procedures for

detailed assessments in other cases.

On May 4, 1994, the Department issued a notice of proposed

rulemaking addressing the assessment of damages for lost nonuse values

of injured natural resources using type B procedures. 59 FR 23097.

Nonuse values are those economic values that are not dependent on use

of a resource and include the value of knowing that the resource exists

and knowing that a resource will be available for future generations.

The only method currently available for the express purpose of

estimating nonuse values is the contingent valuation (CV) methodology.

Two provisions of the original natural resource damage assessment

regulations restricted the use of type B procedures to estimate lost

nonuse values to cases in which lost use values could not be

determined. 43 CFR 11.83(b)(2) and 11.83(d)(5)(ii) (1993). State of

Ohio v. United States Department of the Interior (Ohio v. Interior)

held that these restrictions were inconsistent with section 301 of

CERCLA. 880 F.2d 432, 464 (D.C. Cir. 1989). The court remanded these

provisions, along with several other issues, to the Department and

ordered the Department to promulgate new rules on the remanded issues.

On March 25, 1994, the Department published a final rule addressing all

aspects of the court remand except the estimation of lost nonuse

values. 59 FR 14262. The Department's March 25, 1994, final rule

renumbered 43 CFR 11.83(b)(2) and 11.83(d)(5)(ii) (1993) as new

Secs. 11.83(c)(1)(iii) and 11.83(c)(2)(vii)(B), temporarily leaving the

existing invalid rule language ``on the books'' without substantively

addressing in any way that language or the use of CV for estimating

nonuse values. The May 4, 1994, Federal Register notice proposed

standards for the use of CV to estimate lost nonuse values. Pending the

completion of this rulemaking, the existing restrictive rule language

concerning the estimation of lost nonuse values, which was struck down

in Ohio v. Interior, remains invalid and ineffective.

The comment period on the May 4, 1994, proposed rule was originally

set to expire on July 7, 1994. The Department has received several

requests from the public for additional time to comment on the proposed

rule and has decided to extend the comment period to October 7, 1994.

The Department is coordinating this rulemaking with a rulemaking

being conducted by the National Oceanic and Atmospheric Administration

(NOAA). NOAA has published a proposed natural resource damage

assessment rule under the Oil Pollution Act (33 U.S.C. 2701 et seq.).

59 FR 1061 (January 7, 1994). In a separate notice in today's Federal

Register, NOAA is also announcing an extension of the comment period on

its proposed rule. The proposed standards for the estimation of lost

nonuse values contained in the Department's May 4, 1994, Federal

Register notice are identical to those contained in NOAA's January 7,

1994, Federal Register notice. 59 FR 1182-83. Commenters on the

Department's proposed rule are encouraged to submit copies of their

comments both to the Department, at the address specified at the

beginning of this notice, and to NOAA, at the address specified in its

notice appearing elsewhere in today's Federal Register.

Dated: June 13, 1994.

Bonnie R. Cohen,

Assistant Secretary--Policy, Management, and Budget.

[FR Doc. 94-15190 Filed 6-21-94; 8:45 am]

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