Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules 733 

comments TTB receives about this 

proposal within the related 

Regulations.gov docket. In general, TTB 

will post comments as submitted, and it 

will not redact any identifying or 

contact information from the body of a 

comment or attachment. 

Please contact TTB’s Regulations and 

Rulings division by email using the web 

form available at https://www.ttb.gov/ 

contact-rrd, or by telephone at 202–453– 

2265, if you have any questions 

regarding comments on this proposal or 

to request copies of this document, its 

supporting materials, or the comments 

received. 

Regulatory Flexibility Act 

TTB certifies that this proposed 

regulation, if adopted, would not have 

a significant economic impact on a 

substantial number of small entities. 

The proposed regulation imposes no 

new reporting, recordkeeping, or other 

administrative requirement. Any benefit 

derived from the use of a viticultural 

area name would be the result of a 

proprietor’s efforts and consumer 

acceptance of wines from that area. 

Therefore, no regulatory flexibility 

analysis is required. 

Executive Order 12866 

It has been determined that this 

proposed rule is not a significant 

regulatory action as defined by 

Executive Order 12866, as amended. 

Therefore, no regulatory assessment is 

required. 

Drafting Information 

Karen A. Thornton of the Regulations 

and Rulings Division drafted this 

document. 

List of Subjects in 27 CFR Part 9 

Wine. 

Proposed Regulatory Amendment 

For the reasons discussed in the 

preamble, we propose to amend title 27, 

chapter I, part 9, Code of Federal 

Regulations, as follows: 

PART 9—AMERICAN VITICULTURAL 

AREAS 

■ 1. The authority citation for part 9 

continues to read as follows: 

Authority: 27 U.S.C. 205. 

Subpart C—Approved American 

Viticultural Areas 

■ 2. Section 9.158 is amended by 

revising the section heading, paragraphs 

(a), (b) introductory text, and (c) 

introductory text, and by adding 

paragraph (d) to read as follows: 

§ 9.158 Mendocino Coast Ridge. 

(a) Name. The name of the viticultural 

area described in this section is 

‘‘Mendocino Coast Ridge’’. For purposes 

of part 4 of this chapter, ‘‘Mendocino 

Coast Ridge’’ and ‘‘Mendocino Ridge’’ 

are both terms of viticultural 

significance. 

(b) Approved maps. The appropriate 

maps for determining the boundary of 

the Mendocino Coast Ridge viticultural 

area are four 1:62,500 scale U.S.G.S. 

topographical maps. They are titled: 

* * * * * 

(c) Boundary. The Mendocino Coast 

Ridge viticultural area is located within 

Mendocino County, California. Within 

the boundary description that follows, 

the viticultural area starts at the 1,200- 

foot elevation contour and encompasses 

all areas at or above the 1,200-foot 

elevation contour. The boundary of the 

Mendocino Coast Ridge viticultural area 

is as follows: 

* * * * * 

(d) Transition period. A label 

containing the words ‘‘Mendocino 

Ridge’’ as an appellation of origin 

approved prior to [the effective date of 

the final rule] may be used on wine 

bottled before [two years after the 

effective date of the final rule], if the 

wine conforms to the standards for use 

of the label set forth in § 4.25 or § 4.39(i) 

of this chapter in effect prior to 

[effective date of the final rule]. Existing 

certificates of label approval showing 

‘‘Mendocino Ridge’’ as an appellation of 

origin are revoked by operation of this 

regulation on [two years after the 

effective date of the final rule]. 

Signed: December 19, 2023. 

Mary G. Ryan, 

Administrator. 

Approved: December 20, 2023. 

Thomas C. West, Jr., 

Deputy Assistant Secretary (Tax Policy). 

[FR Doc. 2024–00057 Filed 1–4–24; 8:45 am] 

BILLING CODE 4810–31–P 

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. 

SUMMARY: The Office of Restoration and 

Damage Assessment is seeking 

comments and suggestions from State, 

Tribal, and Federal natural resource cotrustees, 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 http://

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 

jeffrey_parrillo@ios.doi.gov. 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 emily_

joseph@ios.doi.gov. Individuals in the 

United States who are deaf, deafblind, 

hard of hearing, or have a speech 

disability may dial 711 (TTY, TDD, or 


lotter on DSK11XQN23PROD with PROPOSALS1
734 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules 

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-ofcontact 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 reformulate 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 


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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 


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736 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules 

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 


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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 jeffrey_parrillo@ios.doi.gov. 

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, 


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738 Federal Register / Vol. 89, No. 4 / Friday, January 5, 2024 / Proposed Rules 

(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 

■ 1. The authority citation for part 11 

continues to read as follows: 

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

■ 2. Revise §§ 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? 

* * * * * 

§ 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. 

§ 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. 

§ 11.35 How does the Trustee decide 

whether to use Type A or Type B 

procedures? 

(a) If the Trustee determines under 

§ 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. 

§ 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 costeffective 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), § 11.31(c) (which 

addresses content of the Assessment 

Plan), and § 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, § 11.31(c), and 

§ 11.37. Instead, the Trustee may rely on 

the injury predictions of the Type A 

procedure and simply use the valuation 

methodologies authorized by § 11.83(c) 

to calculate compensable value. When 

using valuation methodologies, the 

Trustee must comply with § 11.84. 


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§ 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. 

■ 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 

§ 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. 

§ 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 § 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. 

§ 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. 

§ 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. 

§ 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 


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