Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Rules and Regulations 57259 

bind [insert name of foreign producer] 

with regard to all statements contained 

herein; (2) that I am aware that the 

information contained herein is being 

Certified, or submitted to the United 

States Environmental Protection 

Agency, under the requirements of 40 

CFR part 80, subpart K, and that the 

information is material for determining 

compliance under these regulations; and 

(3) that I have read and understand the 

information being Certified or 

submitted, and this information is true, 

complete and correct to the best of my 

knowledge and belief after I have taken 

reasonable and appropriate steps to 

verify the accuracy thereof. I affirm that 

I have read and understand the 

provisions of 40 CFR part 80, subpart K, 

including 40 CFR 80.1165 apply to 

[insert name of foreign producer]. 

Pursuant to Clean Air Act section 113(c) 

and 18 U.S.C. 1001, the penalty for 

furnishing false, incomplete or 

misleading information in this 

certification or submission is a fine of 

up to $10,000 U.S., and/or 

imprisonment for up to five years. 

■ 20. Section 80.1167 is amended by 

revising paragraph (e) introductory text 

and paragraph (j)(2) to read as follows: 

§ 80.1167 What are the additional 

requirements under this subpart for a 

foreign RIN owner? 

* * * * * 

(e) Bond posting. Any foreign entity 

shall meet the requirements of this 

paragraph (e) as a condition to approval 

as a foreign RIN owner under this 

subpart. 

* * * * * 

(j) * * * 

(2) Signed by the president or owner 

of the foreign RIN owner company, or 

by that person’s immediate designee, 

and shall contain the following 

declaration: 

I hereby certify: (1) That I have actual 

authority to sign on behalf of and to 

bind [insert name of foreign RIN owner] 

with regard to all statements contained 

herein; (2) that I am aware that the 

information contained herein is being 

Certified, or submitted to the United 

States Environmental Protection 

Agency, under the requirements of 40 

CFR part 80, subpart K, and that the 

information is material for determining 

compliance under these regulations; and 

(3) that I have read and understand the 

information being Certified or 

submitted, and this information is true, 

complete and correct to the best of my 

knowledge and belief after I have taken 

reasonable and appropriate steps to 

verify the accuracy thereof. I affirm that 

I have read and understand the 

provisions of 40 CFR part 80, subpart K, 

including 40 CFR 80.1167 apply to 

[insert name of foreign RIN owner]. 

Pursuant to Clean Air Act section 113(c) 

and 18 U.S.C. 1001, the penalty for 

furnishing false, incomplete or 

misleading information in this 

certification or submission is a fine of 

up to $10,000 U.S., and/or 

imprisonment for up to five years. 

[FR Doc. E8–23131 Filed 10–1–08; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

43 CFR Part 11 

RIN 1090–AA97 

Natural Resource Damages for 

Hazardous Substances 

AGENCY: Department of the Interior. 

ACTION: Final rule. 

SUMMARY: This final rule amends certain 

parts of the natural resource damage 

assessment regulations for hazardous 

substances. The regulations provide 

procedures that natural resource 

trustees may use to evaluate the need for 

and means of restoring, replacing, or 

acquiring the equivalent of public 

natural resources that are injured or 

destroyed as a result of releases of 

hazardous substances. The Department 

of the Interior has previously developed 

two types of natural resource damage 

assessment regulations: Standard 

procedures for simplified assessments 

requiring minimal field observation (the 

Type A Rule); and site-specific 

procedures for detailed assessments in 

individual cases (the Type B Rule). 

This final rule revises the Type B Rule 

to emphasize resource restoration over 

economic damages. It also responds to 

two court decisions addressing the 

regulations: State of Ohio v. U.S. 

Department of the Interior, 880 F.2d 432 

(DC Cir. 1989) (Ohio v. Interior); and 

Kennecott Utah Copper Corp. v. U.S. 

Department of the Interior, 88 F.3d 1191 

(DC Cir. 1996) (Kennecott v. Interior), 

and includes a technical revision to 

resolve an apparent inconsistency in the 

timing provisions for the assessment 

process set out in the rule. 

EFFECTIVE DATE: The effective date of 

this final rule is November 3, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Frank DeLuise at (202) 208–4143. 

SUPPLEMENTARY INFORMATION: This 

preamble is organized as follows: 

I. What the Natural Resource Damage 

Regulations Are About 

II. Why We Are Revising Parts of the 

Regulations 

III. Major Issues Addressed by the Revisions 

A. Further Emphasizing Natural Resource 

Restoration Over Economic Damages 

B. Complying With Ohio v. Interior and 

Responding to Kennecott v. Interior 

C. Technical Corrections for Consistent 

Assessment Timing Guidelines 

IV. Response to Comments 

A. Emphasizing Restoration Over 

Economic Damages 

B. Examples of Restoration-Based Damage 

Determination Methodologies 

C. Factors for Evaluating the Feasibility 

and Reliability of Methodologies 

D. Restoration of Resources Versus 

Services 

E. Clarification on Assessment Process 

Timing 

F. Deletion of the Bar on the Use of 

Contingent Valuation to Estimate Option 

and Existence Value To Comply With 

Ohio v. Interior 

G. Deletion of the Date of Promulgation for 

the Statute of Limitations Provisions To 

Comply With Ohio v. Interior 

H. Miscellaneous Comments 

I. What The Natural Resource Damage 

Regulations Are About 

The regulations describe how to 

conduct a natural resource damage 

assessment 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 

rulemaking responsibility to the 

Department of the Interior (DOI). E.O. 

12316, as amended by E.O. 12580. The 

regulations appear in the Code of 

Federal Regulations (CFR) 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 regulations we are 

revising 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 revisions to the 

regulations use ‘‘restoration’’ as an 

umbrella term for all types of actions 

that the natural resource damage 

provisions of CERCLA and the Clean 

Water Act authorize to address injured 

natural resources, including restoration, 


yshivers on PROD1PC62 with RULES
57260 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Rules and Regulations 

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. See 43 CFR 11.15. 

The regulations establish an 

administrative process for conducting 

assessments that includes technical 

criteria for determining whether releases 

have caused injury, and if so, what 

actions and 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. 

The regulations provide guidance on 

two different types of assessment 

procedures identified in CERCLA: 

‘‘Type A’’ and ‘‘Type B’’ procedures. 

Type A procedures are simplified 

procedures for small cases. The current 

Type A procedures are computer 

programs, available in a limited range of 

cases, that model the fate of a released 

substance in order to project the injuries 

caused by the release and calculate 

damages. Type B procedures outline an 

assessment process and assessment 

methods that trustees utilize on a case 

by case basis. We are revising certain 

parts of the Type B procedures (case by 

case assessment provisions) in the 

regulations. 

II. Why We Are Revising the 

Regulations 

CERCLA provides that we review and 

revise the regulations as appropriate 

every two years. 42 U.S.C. 9651(c)(3). To 

assist in this most recent review, in May 

2005, DOI convened a Natural Resource 

Damage Assessment and Restoration 

(NRDAR) Federal Advisory Committee 

(advisory committee) to provide 

recommendations regarding DOI’s 

NRDAR activities, authorities and 

responsibilities. The advisory 

committee comprised 30 members, 

representing a diverse group of 

interested stakeholders—including 

state, tribal, and federal trustee agencies, 

industry groups and potentially 

responsible party representatives, 

scientists, economists, and national and 

local environmental and public interest 

organizations. 

A key recommendation of the 

advisory committee was that DOI 

should undertake, without delay, a 

targeted revision of the regulations to 

emphasize restoration over monetary 

damages. This revision implements that 

recommendation, and responds to two 

court decisions addressing the 

regulations: State of Ohio v. U.S. 

Department of the Interior, 880 F.2d 432 

(DC Cir. 1989) (Ohio v. Interior); and 

Kennecott Utah Copper Corp. v. U.S. 

Department of the Interior, 88 F.3d 1191 

(DC Cir. 1996) (Kennecott v. Interior). 

Finally, we are making a technical 

revision to resolve an inconsistency on 

the appropriate timing for the 

administrative process set out in the 

rule. 

We have considered: 

(a) The NRDAR advisory committee 

report, which was released in May of 

2007; 

(b) Comments provided on the 

proposed rule revisions published in the 

Federal Register on February 29, 2008; 

(c) The Ohio v. Interior opinion; 

(d) The Kennecott v. Interior opinion; 

and 

(e) The OPA regulations. 

III. Major Issues Addressed by the 

Revisions 

Our revisions will largely leave the 

framework of the existing rule intact. 

We are not making substantive changes 

to legal standards for reliability of 

assessment data and methodologies. The 

NRDAR advisory committee made a 

number of recommendations to 

encourage faster, more efficient and 

more cost-effective resolution of claims. 

The committee endorsed a tiered 

approach to implementing its 

recommendations that would 

immediately address the option of 

emphasizing restoration over economic 

damages in the regulations, while 

leaving the implementation of a broader 

range of recommendations—including 

providing technical guidance 

documents and streamlining of the 

restoration planning process—to the 

future. The rest of this section discusses 

the major issues addressed by the 

revisions. The following section 

references the OPA regulations. These 

references are solely for the purpose of 

providing context and background. For 

guidance on conducting natural 

resource damage assessments under 

OPA, see 15 CFR Part 990. 

A. Further Emphasizing Restoration 

Over Economic Damages 

Under the current regulations, 

trustees utilizing the Type B procedures 

must base their claim on the cost of 

implementing a publicly reviewed 

restoration plan designed to return 

injured resources to their baseline 

condition, which is defined as the 

condition that would have existed had 

the release not occurred (see 43 CFR 

11.80–82). CERCLA and the Clean Water 

Act authorize trustees to recover 

damages not only for the cost of 

restoring injured or destroyed resources 

to their baseline condition, but also for 

public losses pending restoration to 

baseline. The regulations call these 

interim losses ‘‘compensable values’’ 

(see 43 CFR 11.83(c)). The regulations 

define compensable value as the amount 

of money required to compensate the 

public for the loss in ‘‘services’’ 

provided by the injured resources 

pending restoration (see 43 CFR 

11.83(c)(1)). Services are defined in the 

current regulations as the physical and 

biological functions performed by the 

resources, including the human use of 

those functions. The current regulations 

provide that compensable value should 

be measured by the economic value of 

public losses arising from the resource 

injury until restoration can be achieved, 

which arguably could be read as 

excluding restoration-based approaches 

to determining compensable value. 

To comply with CERCLA and the 

Clean Water Act, trustees must spend 

any compensable value recoveries on 

restoration actions. Under the current 

regulations, however, trustees do not 

need to consider restoration actions to 

address interim losses until they have 

already determined and recovered 

damages. This can be inefficient and 

confusing. The NRDAR advisory 

committee recommended that DOI 

should amend its current regulation to 

explicitly authorize trustees to use the 

cost of restoration actions that address 

service losses to calculate all damages, 

including interim losses. Providing the 

option for a ‘‘restoration-based’’ 

approach to all damages better comports 

with CERCLA’s overall restoration 

objectives. It also promotes an earlier 

focus on feasible restoration options, 

which can encourage settlements by 

providing opportunities for designing 

creative and cost-effective actions to 

address losses. We are revising 43 CFR 

11.83(c) to provide trustees with the 

option of estimating compensable 

values for losses pending restoration 


yshivers on PROD1PC62 with RULES
Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Rules and Regulations 57261 

utilizing the cost of implementing 

projects that restore those lost natural 

resource services. 

Methodologies that compare losses 

arising from resource injury to gains 

expected from restoration actions are 

frequently simpler and more transparent 

than methodologies used to measure the 

economic value of losses. Our revisions 

include four examples of project-based 

assessment methodologies—conjoint 

analysis, habitat equivalency analysis, 

resource equivalency analysis, and 

random utility models—which have 

been used successfully to resolve claims 

under both the CERCLA and the OPA 

regulations. We are also adding a brief 

description of these restoration-based 

methodologies to the non-exclusive list 

of economic valuation methodologies in 

the current regulation. Our revisions do 

not sanction or bar the use of any 

particular methodology, so long as it 

complies with the four mandatory 

‘‘acceptance criteria’’—which include 

feasibility and reliability, reasonable 

cost, avoidance of double counting, and 

cost effectiveness—that appear in the 

current rule in § 11.83(a)(3). 

The list of methodologies for 

assessing compensable values remains 

non-exclusive, allowing for the 

introduction of new and innovative 

techniques that may arise. As 

mentioned above, the current 

regulations provide that when choosing 

among any cost estimation or valuation 

methodology, trustees must ensure that 

the methodologies selected are feasible 

and reliable for a particular incident or 

type of damage to be measured. To 

assist trustees in evaluating feasibility 

and reliability, we are providing a list of 

factors that set out general principles of 

feasibility and reliability—such as the 

ability to provide useful restoration 

information, peer review, and 

methodological standards—for trustees 

to consider when evaluating the 

reliability of all valuation and damage 

assessment methodologies. Each of the 

listed factors may not be applicable in 

every case, and other relevant factors 

may be considered. Trustees continue to 

be required to document their 

consideration of relevant factors in the 

Report of Assessment. 

B. Complying With Ohio v. Interior and 

Responding to Kennecott v. Interior 

Several provisions of the current 

regulations were invalidated by the DC 

Circuit Court of Appeals in Ohio v. 

Interior and Kennecott v. Interior. Some 

invalidated provisions from the 1986 

rule were carried over in the 1994 

revisions responding to the Ohio v. 

Interior decision. Additionally, the 

Kennecott v. Interior decision in 1996 

invalidated certain provisions from the 

1994 revisions which have not yet been 

corrected to comply with the decision. 

In the final rule, we are making 

technical corrections to the CFR in 

accord with these decisions. 

The Ohio v. Interior decision 

invalidated the limitation on estimating 

option and existence value in 43 CFR 

11.83(c)(1)(iii). Our revisions will 

therefore delete this provision from the 

CFR. The restatement of this limitation 

in 43 CFR 11.83(c)(2)(vii)(B) will also be 

deleted from the CFR. 

Estimating option and existence value 

through the use of contingent valuation 

methodologies remains controversial. 

We note, however, that our revision’s 

focus on compensating for public losses 

pending restoration with restoration 

actions rather than monetary damages 

for the economic value of the losses will 

provide options for comparing 

functional losses from resource injuries 

to functional gains expected from 

restoration actions, which will reduce 

the need for trustees to seek to recover 

the monetary value of passive economic 

losses such as option and existence 

value. 

The Kennecott v. Interior decision 

invalidated DOI’s attempt to define the 

date of promulgation of the 1994 

revisions to the rule. This was relevant 

because it affected the three-year 

statutory limitations for filing a claim at 

some CERCLA sites. In 43 CFR 11.91(e), 

DOI defined the date of promulgation as 

the later of the date when either the 

Type A or Type B Rule was finalized, 

pursuant to the Ohio v. Interior 

decision. The Court of Appeals found 

this interpretation unreasonable and 

invalidated the provision, which we 

will delete from the CFR. Since both the 

Type A and Type B revisions finalized 

pursuant to the Ohio v. Interior decision 

were finalized more than three years 

ago, this deletion is merely a technical 

correction which has no material effect. 

The 1994 revisions to the NRDAR rule 

stated that the measure of natural 

resource damages under CERCLA was 

the cost of restoration of ‘‘the injured 

natural resources and the services those 

resources provide’’ (see 43 CFR 

11.80(b)). In the Kennecott decision, the 

Court of Appeals invalidated this 

language because it was inconsistent 

with DOI’s preamble explanation of the 

measure of damages, which endorsed 

the concept of quantifying resource 

injury and resulting public losses by 

utilizing a services metric. The court 

reasoned that creating an apparent 

dichotomy between restoration of 

resources and restoration of services 

implied an abandonment of the services 

approach that was unexplained. The 

court therefore invalidated the 

‘‘resources and services’’ language and 

‘‘reinstated’’ the services approach, 

pending further clarification. 

Under the current rule, natural 

resource damages include both the cost 

of restoring injured resources to a 

condition where they can provide the 

level of services available at baseline 

level of services and, when appropriate, 

compensation for interim service losses 

pending restoration. Under the current 

rule, restoration to baseline focuses on 

the resource condition, while 

compensable value focuses on 

compensation for lost services pending 

the restoration of resources. ‘‘Resources 

and services’’ reflects the distinct 

emphases for different damage 

components, but it was not intended as 

a rejection of a services-based approach. 

As the revisions make clear, the metric 

for evaluating natural resource 

conditions for baseline restoration is the 

availability of the baseline level of 

services, while the compensable value 

for losses pending restoration is either 

the value of the services lost pending 

restoration or the cost of projects that 

compensate for services lost pending 

restoration. 

The revision to 43 CFR 11.80(b) 

clarifies that the measure of damages is 

the cost of (1) restoring or rehabilitating 

the injured natural resources to a 

condition where they can provide the 

level of services available at baseline, or 

(2) replacing and/or acquiring 

equivalent natural resources capable of 

providing such services. Of course, 

damages can be measured by an 

appropriate combination of partial 

restoration or rehabilitation, and partial 

replacement and/or acquisition of 

equivalent resources, so long as there is 

no double counting. Damages may also 

include, at the discretion of the trustees, 

the compensable value of services lost 

pending restoration. This clear construct 

is carried over for conforming changes 

to 43 CFR 11.81(a)(1) and (2), 43 CFR 

11.82(a), (b)(iii), and (c), and 43 CFR 

11.83(a). 

C. Technical Correction To Provide 

Consistent Timing Guidelines 

The current regulations provide that a 

Restoration and Compensation 

Determination Plan (RCDP) which 

evaluates and selects restoration 

alternatives may be developed after 

completion of the injury determination 

and quantification phases of the 

assessment (see 43 CFR 11.81(d)(1)). 

However, an earlier provision of the 

current regulations provides that the 

RCDP can be developed ‘‘at any time 

before’’ completion of the injury 

determination or quantification phases. 


yshivers on PROD1PC62 with RULES
57262 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Rules and Regulations 

(See 43 CFR 11.31(c)(4)). Since the 

evaluation and selection of restoration 

alternatives can benefit from more 

definitive injury determination and 

quantification data, we are resolving 

this inconsistency by correlating 43 CFR 

11.31(c)(4) with 43 CFR 11.81(d)(1) to 

provide that the RCDP may be 

completed after the injury 

determination and quantification phases 

of the assessment. 

IV. Response to Comments 

The Department received 21 

comments on the February 29, 2008 

Federal Register Proposed Rulemaking 

Notice. The Department appreciates the 

time and effort expended by the 

commenters. This notice does not 

address any comments outside of the 

scope of the proposed targeted 

revisions. The NRDAR Advisory 

Committee considered other NRDAR 

practice issues—such as encouraging an 

early focus on restoration planning and 

streamlining the restoration 

implementation process. These and 

other issues concerning these 

regulations may be addressed in future 

biennial reviews. 

A. Emphasizing Restoration Over 

Economic Damages 

1. Providing the Option To Calculate All 

Natural Resource Damages Utilizing a 

Restoration-Based Approach 

Comment: Most commenters who 

expressed an opinion on the issue of 

allowing for restoration-based 

approaches to public losses pending 

restoration generally supported this 

change. Many commenters believed that 

restoration-based approaches better 

comport with the purposes of CERCLA. 

Response: We believe that in many 

cases, restoration-based approaches can 

lead to timelier, more efficient, and 

more cost effective —which is the key 

objective of these revisions. The NRDAR 

process is streamlined by focusing 

directly on restoration alternatives that 

address losses, rather than on first 

estimating the monetary value of losses 

and then determining how to address 

them with appropriate projects. 

Moreover, the transparency involved in 

comparing resource gains to resource 

losses reduces controversy and 

transaction costs, and encourages 

collaborative efforts to identify projects 

that yield high human and ecological 

benefits relative to their monetary cost. 

Comment: The factors to consider 

when selecting restoration-based 

alternatives to compensate for interim 

public losses pending restoration should 

be the same as those for selecting 

restoration-based alternatives to restore, 

rehabilitate, replace, or acquire 

resources equivalent to those injured in 

§ 11.82 of the rule. 

Response: We agree that all 

restoration-based alternatives for 

damages should be evaluated 

consistently under the rule, and the 

revisions reflect this in § 11.82. 

2. Preserving the Option To Calculate 

Interim Public Loss Damages Utilizing 

the Economic Value of the Loss 

Comment: Some commenters 

expressed concern that restorationbased approaches were ‘‘overemphasized’’ and that trustees should 

retain the option of making claims for 

public losses pending restoration based 

on the monetary value of the losses. 

Response: The purpose of the 

revisions is to remove any barriers that 

exist to utilizing restoration-based 

approaches to all damages, including 

damages for public losses pending 

restoration (compensable values.) The 

revisions do not, however, bar the use 

of methodologies that estimate the 

monetary value of public losses pending 

resource restoration. Therefore, 

recovering the monetary value of public 

losses pending restoration remains an 

option for trustees. Nevertheless, 

regardless of how damages are 

calculated, the focus of the NRDAR 

program is on achieving restoration, not 

on recovering monetary damages for 

their own sake. 

B. Examples of Restoration-Based 

Damage Determination Methodologies 

1. Formally Sanctioning or Barring 

Particular Valuation and Assessment 

Methodologies 

Comment: Some commenters 

suggested that DOI’s decision not to 

formally sanction or bar particular 

valuation and assessment 

methodologies is inconsistent with 

CERCLA and prior rulemakings. These 

commenters suggest that since CERCLA 

requires DOI to select the ‘‘best available 

procedures’’ (42 U.S.C. 9651(c)) to 

determine natural resource damages, 

and since the Ohio decision confirmed 

that contingent valuation—which is 

listed as a valuation and assessment 

methodology in § 11.83 as a best 

available procedure—DOI is required to 

sanction or bar valuation and 

assessment methodologies. 

Response: The Kennecott decision 

upheld the rule’s use of ‘‘catch-all’’ 

provisions in § 11.83 that give trustees 

the discretion to utilize assessment 

methodologies other than those 

specifically listed in that section. This 

directly contradicts the idea that only 

specifically sanctioned assessment 

methodologies are consistent with 

CERCLA. More importantly, the 

Kennecott decision made clear that the 

procedures and protocols required by 

CERCLA at 42 U.S.C. 9651(c) are 

interpreted to mean a standard method 

of evaluation, not a determinative list of 

methodologies that are definitively 

accurate in all circumstances. ‘‘Best 

available procedures’’ for applying an 

assessment or valuation methodology to 

the wide range of site specific 

conditions trustees might encounter 

should be considered in the context of 

the entire rule. This includes utility for 

determining appropriate restoration 

actions, evaluation against the four 

mandatory acceptance criteria, and the 

documentation of trustee choices and 

rationales in a plan subject to public 

review and comment. This is consistent 

with CERCLA, judicial interpretations of 

this rule, and statements by DOI in prior 

rulemakings. 

2. The Reliability of Restoration-Based 

Methodologies (Habitat/Resource 

Equivalency Analysis, Conjoint 

Analysis, and Random Utility Models) 

Referred to in the Revised Rule 

Comment: Some commenters 

welcomed the proposal to provide some 

examples of restoration-based 

methodologies that have been used to 

formulate and resolve natural resource 

damage claims for calculating 

compensable values, and add those 

examples to a list that had exclusively 

included methodologies to determine 

monetary damages based on the 

economic value of the losses. A few 

commenters suggested that the CERCLA 

NRDAR rule should affirmatively 

encourage the use of habitat equivalency 

analysis, which is the case under the 

OPA NRDAR rule. Conversely, some 

commenters suggested that habitat 

equivalency, resource equivalency, and 

conjoint analyses were not unanimously 

considered to be reliable, and could be 

applied in a way that yielded unreliable 

results. 

Response: The use of habitat 

equivalency analysis is explicitly 

encouraged under the OPA NRDAR 

rule. Conjoint analysis—a stated 

preference method that compares the 

resource services provided by various 

restoration alternatives to each other, 

rather than just estimating their 

monetary values—can be as properly 

applied and structured, consistent with 

the holdings of the Ohio court and the 

Report of the NOAA Blue Ribbon Panel 

on Contingent Valuation, as the 

currently listed contingent valuation 

methodology. Few of the methodologies 

currently listed in § 11.83 of the rule are 

universally accepted as definitively 


yshivers on PROD1PC62 with RULES
Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Rules and Regulations 57263 

accurate means for determining 

appropriate compensation for natural 

resource injury, and no listed 

methodology is immune from being 

applied in a way that could yield 

unreliable results. As stated in the 

previous response, the reliability of any 

methodology applied to a specific 

assessment is determined by a process 

that requires a trustee decision maker to 

develop and consider options, to 

evaluate those options based on certain 

criteria, and to document the rationale 

for choices made in a plan subject to 

public review and comment. 

3. The Need for Further Guidance on the 

Use of Restoration-Based and Other 

Assessment Methodologies 

Comment: Many commenters 

suggested that the Department should 

develop guidance on the proper 

utilization and application of 

restoration-based and other assessment 

methodologies. 

Response: As recommended by the 

NRDAR FACA Committee, the 

Department plans to undertake and 

sponsor multi-stakeholder efforts to 

develop additional guidance to 

supplement existing guidance on best 

assessment practices. 

4. Some of the Restoration-Based 

Methodologies Referred to in the 

Revised Rule Can Also Be Used To 

Estimate the Monetary Economic Value 

of Public Losses 

Comment: One commenter said that 

although it is true that habitat 

equivalency, resource equivalency, and 

conjoint analyses, as well as random 

utility models are examples of 

restoration-based methodologies, 

conjoint analyses and random utility 

models can also be used to estimate 

monetary damages based on the 

economic value of losses. 

Response: The list of methodologies is 

intended to include both restorationbased and the traditional monetary 

economic value based methodologies, 

since the rule gives the option to 

calculate damages for public losses 

pending restoration utilizing either 

approach. The revised rule specifically 

states that Random Utility Models may 

be suitable for to calculating either 

restoration-based or monetary economic 

damages. 

C. Factors for Evaluating the Feasibility 

and Reliability of Methodologies 

1. Reasonable Cost, Cost Effectiveness, 

and Avoiding Double Counting Should 

Remain Mandatory Criteria for 

Valuation and Assessment 

Methodologies, and Not Just Factors To 

Utilize To Evaluate Feasibility and 

Reliability 

Comment: Some commenters 

indicated general support for offering 

guidance to trustees on discretionary 

factors to consider on methodology 

feasibility and reliability, but pointed 

out that no justification is given for 

transforming mandatory acceptance 

criteria for valuation and assessment 

methodologies into discretionary 

‘‘factors’’ that trustees should consider 

and document in their Restoration and 

Compensation Determination Plan. 

Response: We did not intend to 

suggest that reasonable cost, cost 

effectiveness, and avoiding double 

counting were no longer mandatory 

acceptance criteria. All three of these 

criteria are required by other parts of the 

rule, so the intent was that they would 

be applicable in all cases, even if they 

were included within a list of factors 

that would not be applicable in all 

cases. The final rule revision clarifies 

this by leaving the current rule’s 

language on mandatory criteria for 

methodologies that includes feasibility 

and reliability, reasonable cost, cost 

effectiveness, and avoiding double 

counting intact, and distinguishing 

these criteria from discretionary factors 

that can be used to consider and 

document feasibility and reliability. 

2. The New Feasibility and Reliability 

Factors in the Proposed Rule Amount to 

Additional Mandatory Criteria, Which 

Are Unnecessary and Will Lead to 

Increased Transaction Costs and Delay, 

Further Deterring Trustees From Using 

the Rule 

Comment: Some commenters 

indicated they were strongly opposed to 

DOI suggesting additional factors that 

trustees could utilize to evaluate the 

feasibility and reliability of assessment 

methodologies. The mandatory 

application of some or all of these 

factors will increase transaction costs, 

create hurdles to completing 

assessments and implementing 

restoration, and thus deter trustees from 

utilizing this discretionary rule. 

Response: As indicted in the response 

above, the four mandatory criteria for 

assessment methodologies remain 

unchanged in this final rule. We do not 

believe that including a new section that 

includes discretionary, non-exclusive 

factors for trustees to consider in 

evaluating the mandatory (but nonspecific) ‘‘feasibility and reliability’’ 

criteria will unduly burden trustees, 

increase transaction costs, or deter 

trustees from utilizing the rule and 

availing themselves to a rebuttable 

presumption in any judicial or 

administrative proceeding on the claim. 

In fact, since feasibility and reliability 

are mandatory criteria for assessment 

methodologies under the rule, offering 

general guidance that includes examples 

of standard established indices of 

reliability will assist trustees in 

evaluating and documenting their 

choices, as required by the rule. 

3. The Rule Should Affirmatively 

Provide That Methodologies Listed in 

43 CFR 11.82 Are Feasible and Reliable 

Comment: Some commenters said that 

the rule should make clear that all 

methodologies listed in § 11.83 have 

met the four mandatory criteria for 

assessment methodologies. 

Response: The wide range of 

situations that trustees encounter when 

conducting a natural resource damage 

assessment makes it infeasible to 

determine that certain methodologies 

are definitively reliable in all 

circumstances and applications. As 

previously stated, the reliability of a 

particular assessment methodology in a 

particular situation is determined in the 

context of a rule which describes a 

process that requires a trustee decision 

maker to develop and consider options, 

to evaluate those options based on 

certain criteria, and to document the 

rationale for choices made in a plan 

subject to public review and comment. 

D. Restoration of Resources vs. Services 

1. The Reinstatement of the Services 

Based Approach to Quantifying Injury 

and Damages in the Rule Will 

Inappropriately Lead to the Restoration 

of Services Instead of Resources 

Comment: The proposal 

‘‘overemphasizes’’ the restoration of 

services over resources, and implies that 

CERCLA only requires the restoration of 

services, not the restoration of 

resources. 

Response: CERCLA and the CWA 

unambiguously require that all NRDAR 

recoveries be used ‘‘only to restore, 

replace, or acquire the equivalent’’ of 

injured natural resources. Neither this 

rule, nor the Kennecott decision’s 

‘‘reinstatement’’ of the services-based 

approach alters these mandatory and 

fundamental statutory requirements. As 

we are specifically providing in these 

revisions, and have made clear in 

previous rulemakings (See, e.g., 59 

Federal Register 1472–73, March 25, 


yshivers on PROD1PC62 with RULES
57264 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Rules and Regulations 

1994, 58 Federal Register 39339–41, 

July 22, 1993, and 51 Federal Register 

27686, August 1, 1986) ‘‘services’’ are a 

metric for measuring resource 

conditions and resource restoration. 

They are not abstract functions that are 

disassociated from natural resources, 

and they are restored or replaced by 

actions related to the quality, quantity, 

or availability of natural resources. 

2. Describing the Services-Based 

Approach 

Comment: A few commenters 

suggested that to improve clarity and 

correct syntax, the description of the 

four types of restoration work 

(restoration, rehabilitation, replacement, 

or acquisition of equivalent resources) 

in § 11.80 should be described in two 

separate clauses. 

Response: For the purpose of clarity, 

§ 11.80 has been revised. Similar 

revisions have been made to §§ 11.81, 

11.82, and 11.83. 

3. Defining Services 

Comment: One commenter suggested 

that DOI needs to emphasize that 

services include the full suite of human 

and ecological functions performed by 

natural resources. 

Response: We believe the current 

definition of services in the rule 

includes both human and ecological 

services. 

Comment: A few commenters said 

that the definition of ‘‘restoration or 

rehabilitation’’ in 43 CFR 11.14 needs to 

also be revised to reflect the services 

based approach, since it refers to actions 

that restore the physical, chemical, or 

biological properties of resources, as 

well as their services. 

Response: The current definition of 

services in the rule, which remains 

unchanged, makes clear that services 

‘‘result’’ from the physical, chemical, or 

biological quality of resources. 

Accordingly, we do not believe any 

revision is needed in the definition of 

‘‘restoration or rehabilitation’’ to 

comport with the services-based 

approach. 

E. Assessment Process Timing 

Clarification 

1. Consistent Timing Guidelines 

Comment: All commenters who 

addressed this issue voiced support for 

technical corrections to provide 

consistent timing guidelines for 

completion of the Restoration and 

Compensation Determination Plan. 

Response: This technical correction is 

included in the final rule. 

F. Deletion of the Bar on the Use of 

Contingent Valuation To Estimate 

Option and Existence Value To Comply 

With Ohio v. Interior 

1. Technical Correction on Deleting the 

Bar on Estimating Option and Existence 

Value 

Comment: All commenters who 

addressed this issue were supportive of 

this technical correction, which codifies 

an explicit ruling of the Ohio decision. 

Response: This technical correction is 

included in the final rule. 

G. Deletion of the Date of Promulgation 

for the Statute of Limitation Provision 

To Comply With Kennecott v. Interior 

1. Technical Correction To Strike Out 

Rule Promulgation Date 

Comment: All commenters who 

addressed this issue were supportive of 

this technical correction, which codifies 

an explicit ruling of the Kennecott 

decision. 

Response: This technical correction is 

included in the final rule. 

H. Miscellaneous Comments 

1. Consideration of Damages for 

Compensable Values Pending 

Restoration Should Be Mandatory, not 

Discretionary 

Comment: One commenter said that 

damages for public losses pending 

restoration should be mandatory, not 

discretionary as set forth in the existing 

rule. 

Response: This is beyond the scope of 

the current revisions. The current rule 

grants broad discretion to trustees on 

formulating and pursuing claims. 

2. Cultural Resources 

Comment: One commenter expressed 

concern that the rule revisions would 

hinder trustees seeking recoveries for 

the value of cultural natural resource 

services lost as the result of natural 

resource injury. 

Response: Cultural, religious, and 

ceremonial losses that rise from the 

destruction of or injury to natural 

resources continue to be cognizable 

under the revisions. The revisions do 

not affect the treatment of these losses 

under the rule. 

3. Terminology—Monetary Damages 

Comment: One commenter suggested 

that the preamble should distinguish 

restoration-based approaches from 

monetary damages for the economic 

value of losses, rather than from 

‘‘economic’’ approaches, since some 

restoration-based approaches are 

economic methodologies. 

Response: The revised preamble to 

this final rule utilizes the more precise 

terminology of ‘‘monetary damages for 

the economic value of public losses’’. 

4. General Support for the Concept of 

Natural Resource Damages 

Comment: One commenter voiced 

general support for the concept of 

damages to restore natural resources 

injured by releases of hazardous 

substances or oil. 

Response: We acknowledge the 

comment, and believe that the revisions 

will improve the NRDAR practice and 

encourage quicker, more effective, and 

more efficient restoration of injured 

natural resources. 

V. How We Have Complied With 

Rulemaking Requirements 

Regulatory Planning and Review Under 

E.O. 12866 

The Office of Management and Budget 

has reviewed these revisions. The 

revisions are a significant regulatory 

action under E.O. 12866 because the 

rule will raise novel legal or policy 

issues. The revisions clarify that trustees 

have the option of calculating total 

damages using the cost of restoration 

actions that compensate for losses, 

rather than requiring a two-part process 

where natural resource damages are 

calculated using the cost of restoration 

actions, and public losses pending 

restoration are calculated using the 

monetary economic value of the loss. 

These revisions do not fall under 

other criteria in E.O. 12866: 

a. This rule will not have an annual 

economic effect of $100 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, the revisions should assist in 

reducing natural resource damage 

assessment transaction costs by 

allowing trustees to utilize simpler and 

more transparent methodologies to 

assess damages when appropriate. The 

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 are 

set out in the rule. 

We also believe that in many cases an 

early focus on feasible restoration and 

appropriate restoration actions, rather 

than on the monetary value of public 


yshivers on PROD1PC62 with RULES
Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Rules and Regulations 57265 

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 timelier restoration, and 

reduced transaction costs. To the extent 

any are affected by the revisions, it is 

anticipated that all parties will benefit 

by the increased focus on restoration in 

lieu of monetary damages. 

b. The 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 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 

section on E.O. 12866 above for 

discussion of potential economic 

effects.) 

Small Business Regulatory Enforcement 

Fairness Act 

This rule revision is not a major rule 

under the Small Business Regulatory 

Enforcement Fairness 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 section on E.O. 12866 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 section on E.O. 

12866 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 section on E.O. 12866 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 

revisions do not change the optional 

nature of the existing regulations. The 

revisions themselves do not replace 

existing procedures; they merely clarify 

that trustees have 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 

for injury to natural resources until they 

have received ‘‘due process’’ through a 

legal action in federal court. This rule 

and the revisions merely provide a 

framework for assessing injury and 

developing the claim. 

Federalism Analysis Under E.O. 12612 

E.O. 12612 requires federal agencies 

to consult with elected state officials 

before issuing 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.’’ This rule 

and the revisions do not require state 

trustees to take any action; therefore it 

does not impose any unfunded 

mandates. The rule and the revisions do 

not preempt state law. The rule and the 

revisions have no significant effect on 

intergovernmental relations because 

they do not alter the rights and 

responsibilities of government entities. 

Therefore, a federalism summary impact 

statement is not required under section 

6 of the Order. 

Civil Justice Reform Under E.O. 12988 

Our Office of the Solicitor has 

determined that the revisions do not 

unduly burden the judicial system and 

meet the requirements of section 3(a) 

and 3(b)(2) of the Order. The 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. 

Paperwork Reduction Act 

The revisions do not pose ‘‘identical 

questions’’ to, or impose ‘‘identical 

reporting, record keeping, or disclosure 

requirements,’’ on trustees. Therefore, 

the revisions do not include an 

‘‘information collection’’ governed by 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. 

National Environmental Policy Act 

We have analyzed the 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 revisions 

may sometimes involve major federal 

actions significantly affecting the 

quality of the human environment. In 

those cases, federal trustees will need to 

comply with NEPA. However, the 

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 revisions do 

not determine the specific restoration 

actions that trustees can seek. Therefore, 

the rule and the 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. 

List of Subjects in 43 CFR Part 11 

Natural resources, environmental 

protection. 

Dated: September 25, 2008. 

James E. Cason, 

Associate Deputy Secretary. 

■ For the reasons given in the preamble, 

we are amending part 11 of title 43 of 

the Code of Federal Regulations as 

follows: 

PART 11—NATURAL RESOURCE 

DAMAGES FOR HAZARDOUS 

SUBSTANCES 

■ 1. The authority citation for part 11 

continues to read as follows: 

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

■ 2. In § 11.31, revise paragraph (c)(4) to 

read as follows: 

§ 11.31 What does the assessment plan 

include? 

* * * * * 

(c) * * * 

(4) The Restoration and Compensation 

Determination Plan developed in 

accordance with the guidance in § 11.81 

of this part. If existing data are not 

sufficient to develop the Restoration and 

Compensation Determination Plan as 

part of the Assessment Plan, the 


yshivers on PROD1PC62 with RULES
57266 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Rules and Regulations 

Restoration and Compensation 

Determination Plan may be developed 

later, after the completion of the Injury 

Determination or Quantification phases. 

If the Restoration and Compensation 

Determination Plan is published 

separately, the public review and 

comment will be conducted pursuant to 

§ 11.81(d) of this part. 

* * * * * 

■ 3. In § 11.38, revise paragraph (c)(2)(i) 

to read as follows: 

§ 11.38 Assessment Plan—preliminary 

estimate of damages. 

* * * * * 

(c) * * * 

(2) * * * 

(i) The preliminary estimate of 

compensable value should represent the 

expected present value of the 

anticipated compensable value, 

expressed in constant dollars, accrued 

through the period for the restoration, 

rehabilitation, replacement, and/or 

acquisition of equivalent resources to 

baseline conditions, i.e., between the 

occurrence of the discharge or release 

and the completion of (A) the 

restoration or rehabilitation of the 

injured natural resources to a condition 

where they can provide the level of 

services available at baseline, or (B) the 

replacement and/or acquisition of 

equivalent natural resources capable of 

providing such services. The estimate 

should use the same base year as the 

preliminary estimate of costs of 

restoration, rehabilitation, replacement, 

and/or acquisition of equivalent 

resources. The provisions detailed in 

§§ 11.80–11.84 of this part are the basis 

for the development of this estimate. 

* * * * * 

■ 4. In § 11.80, revise paragraph (b) to 

read as follows: 

§ 11.80 Damage Determination Phase— 

general. 

* * * * * 

(b) Purpose. The purpose of the 

Damage Determination phase is to 

establish the amount of money to be 

sought in compensation for injuries to 

natural resources resulting from a 

discharge of oil or release of a hazardous 

substance. The measure of damages is 

the cost of (i) restoration or 

rehabilitation of the injured natural 

resources to a condition where they can 

provide the level of services available at 

baseline, or (ii) the replacement and/or 

acquisition of equivalent natural 

resources capable of providing such 

services. Damages may also include, at 

the discretion of the authorized official, 

the compensable value of all or a 

portion of the services lost to the public 

for the time period from the discharge 

or release until the attainment of the 

restoration, rehabilitation, replacement, 

and/or acquisition of equivalent of 

baseline. 

* * * * * 

■ 5. In § 11.81, revise paragraph (a) to 

read as follows: 

§ 11.81 Damage Determination Phase— 

Restoration and Compensation 

Determination Plan. 

(a) Requirement. (1) The authorized 

official shall develop a Restoration and 

Compensation Determination Plan that 

will list a reasonable number of possible 

alternatives for (i) the restoration or 

rehabilitation of the injured natural 

resources to a condition where they can 

provide the level of services available at 

baseline, or (ii) the replacement and/or 

acquisition of equivalent natural 

resources capable of providing such 

services, and, where relevant, the 

compensable value; select one of the 

alternatives and the actions required to 

implement that alternative; give the 

rationale for selecting that alternative; 

and identify the methodologies that will 

be used to determine the costs of the 

selected alternative and, at the 

discretion of the authorized official, the 

compensable value of the services lost 

to the public associated with the 

selected alternative. 

(2) The Restoration and Compensation 

Determination Plan shall be of sufficient 

detail to evaluate the possible 

alternatives for the purpose of selecting 

the appropriate alternative to use in 

determining the cost of baseline 

restoration, rehabilitation, replacement, 

and/or acquisition of equivalent 

resources, and, where relevant, the 

compensable value. 

* * * * * 

■ 6. In § 11.82, revise paragraphs (a), 

(b)(1)(iii), and (c) to read as follows: 

§ 11.82 Damage Determination Phase— 

alternatives for restoration, rehabilitation, 

replacement, and/or acquisition of 

equivalent resources. 

(a) Requirement. The authorized 

official shall develop a reasonable 

number of possible alternatives for (i) 

the restoration or rehabilitation of the 

injured natural resources to a condition 

where they can provide the level of 

services available at baseline, or (ii) the 

replacement and/or acquisition of 

equivalent natural resources capable of 

providing such services. For each 

possible alternative developed, the 

authorized official will identify an 

action, or set of actions, to be taken 

singly or in combination by the trustee 

agency to achieve the baseline 

restoration, rehabilitation, replacement, 

and/or acquisition of equivalent natural 

resources. The authorized official shall 

then select from among the possible 

alternatives the alternative that he 

determines to be the most appropriate 

based on the guidance provided in this 

section. 

(b) * * * 

(1) * * * 

(iii) Possible alternatives are limited 

to those actions that (i) restore or 

rehabilitate the injured natural 

resources to a condition where they can 

provide the level of services available at 

baseline, or (ii) replace and/or acquire 

equivalent natural resources capable of 

providing such services. 

* * * * * 

(c)(1) The possible alternatives 

considered by the authorized official 

that return the injured resources to their 

baseline level of services could range 

from intensive action on the part of the 

authorized official to return the various 

resources and services provided by 

those resources to baseline conditions as 

quickly as possible, to natural recovery 

with minimal management actions. 

Possible alternatives within this range 

could reflect varying rates of recovery, 

combinations of management actions, 

and needs for resource replacements or 

acquisitions. 

* * * * * 

■ 7. In § 11.83, revise paragraph (a)(1), 

add new paragraphs (a)(4) and (a)(5), 

and revise paragraph (c) to read as 

follows: 

§ 11.83 Damage Determination Phase— 

cost estimating and valuation 

methodologies. 

(a) General. (1) This section contains 

guidance and methodologies for 

determining: The costs of the selected 

alternative for (i) the restoration or 

rehabilitation of the injured natural 

resources to a condition where they can 

provide the level of services available at 

baseline, or (ii) the replacement and/or 

acquisition of equivalent natural 

resources capable of providing such 

services; and the compensable value of 

the services lost to the public through 

the completion of the baseline 

restoration, rehabilitation, replacement, 

and/or acquisition of equivalent natural 

resources. 

* * * * * 

(4) Factors that may be considered by 

trustees to evaluate the feasibility and 

reliability of methodologies can include: 

(i) Is the methodology capable of 

providing information of use in 

determining the restoration cost or 

compensable value appropriate for a 

particular natural resource injury? 

(ii) Does the methodology address the 

particular natural resource injury and 


yshivers on PROD1PC62 with RULES
Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Rules and Regulations 57267 

associated service loss in light of the 

nature, degree, and spatial and temporal 

extent of the injury? 

(iii) Has the methodology been subject 

to peer review, either through 

publication or otherwise? 

(iv) Does the methodology enjoy 

general or widespread acceptance by 

experts in the field? 

(v) Is the methodology subject to 

standards governing its application? 

(vi) Are methodological inputs and 

assumptions supported by a clearly 

articulated rationale? 

(vii) Are cutting edge methodologies 

tested or analyzed sufficiently so as to 

be reasonably reliable under the 

circumstances? 

(5) All of the above factors may not be 

applicable to every case, and other 

factors may be considered to evaluate 

feasibility and reliability. The 

authorized official shall document any 

consideration of factors deemed 

applicable in the Report of Assessment. 

* * * * * 

(c) Compensable value. (1) 

Compensable value is the amount of 

money required to compensate the 

public for the loss in services provided 

by the injured resources between the 

time of the discharge or release and the 

time the resources are fully returned to 

their baseline conditions, or until the 

resources are replaced and/or equivalent 

natural resources are acquired. The 

compensable value can include the 

economic value of lost services 

provided by the injured resources, 

including both public use and nonuse 

values such as existence and bequest 

values. Economic value can be 

measured by changes in consumer 

surplus, economic rent, and any fees or 

other payments collectable by a Federal 

or State agency or an Indian tribe for a 

private party’s use of the natural 

resources; and any economic rent 

accruing to a private party because the 

Federal or State agency or Indian tribe 

does not charge a fee or price for the use 

of the resources. Alternatively, 

compensable value can be determined 

utilizing a restoration cost approach, 

which measures the cost of 

implementing a project or projects that 

restore, replace, or acquire the 

equivalent of natural resource services 

lost pending restoration to baseline. 

(i) Use value is the economic value of 

the resources to the public attributable 

to the direct use of the services provided 

by the natural resources. 

(ii) Nonuse value is the economic 

value the public derives from natural 

resources that is independent of any 

direct use of the services provided. 

(iii) Restoration cost is the cost of a 

project or projects that restore, replace, 

or acquire the equivalent of natural 

resource services lost pending 

restoration to baseline. 

(2) Valuation methodologies. The 

authorized official may choose among 

the valuation methodologies listed in 

this section to estimate appropriate 

compensation for lost services or may 

choose other methodologies provided 

that the methodology can satisfy the 

acceptance criterion in paragraph (c)(3) 

of this section. Nothing in this section 

precludes the use of a combination of 

valuation methodologies so long as the 

authorized official does not double 

count or uses techniques that allow any 

double counting to be estimated and 

eliminated in the final damage 

calculation. 

Type of Methodology Description 

(i) Market price ................................ The authorized official may determine the compensable value of the injured resources using the diminution 

in the market price of the injured resources or the lost services. May be used only if: 

(A) The natural resources are traded in the market; and 

(B) The authorized official determines that the market for the resources, or the services provided by 

the resources, is reasonably competitive. 

(ii) Appraisal .................................... The measure of compensable value is the difference between the with- and without-injury appraisal value 

determined by the comparable sales approach as described in the Uniform Appraisal Standards. Must 

measure compensable value, to the extent possible, in accordance with the ‘‘Uniform Appraisal Standards for Federal Land Acquisition,’’ Interagency Land Acquisition Conference, Washington, DC, 1973 (incorporated by reference, see § 11.18). 

(iii) Factor income (sometimes referred to as the ‘‘reverse value 

added’’ methodology).

May be used only if the injured resources are inputs to a production process, which has as an output a 

product with a well-defined market price. May be used to determine: (A) The economic rent associated 

with the use of resources in the production process; and (B) The in-place value of the resources. 

(iv) Travel cost ................................ May be used to determine a value for the use of a specific area. Uses an individual’s incremental travel 

costs to an area to model the economic value of the services of that area. Compensable value of the 

area to the traveler is the difference between the value of the area with and without a discharge or release. Regional travel cost models may be used, if appropriate. 

(v) Hedonic pricing .......................... May be used to determine the value of nonmarketed resources by an analysis of private market choices. 

The demand for nonmarketed natural resources is thereby estimated indirectly by an analysis of commodities that are traded in a market. 

(vi) Unit value/benefits transfer ....... Unit values are preassigned dollar values for various types of nonmarketed recreational or other experiences by the public. Where feasible, unit values in the region of the affected resources and unit values 

that closely resemble the recreational or other experience lost with the affected resources may be used. 

(vii) Contingent valuation ................ Includes all techniques that set up hypothetical markets to directly elicit an individual’s economic valuation 

of a natural resource. Can determine: 

(A) Use values and explicitly determine option and existence values; and 

(B) Lost use values of injured natural resources. 

(viii) Conjoint Analysis ..................... Like contingent valuation, conjoint analysis is a stated preference method. However, instead of seeking to 

value natural resource service losses in strictly economic terms, conjoint analysis compares natural resource service losses that arise from injury to natural resource service gains produced by restoration 

projects. 

(ix) Habitat Equivalency Analysis ... May be used to compare the natural resource services produced by habitat or resource-based restoration 

actions to natural resource service losses. 

(x) Resource Equivalency Analysis Similar to habitat equivalency analysis. This methodology may be used to compare the effects of restoration actions on specifically identified resources that are injured or destroyed. 

(xi) Random Utility Model ............... Can be used to: (A) Compare restoration actions on the basis of equivalent resource services provided; 

and (B) Calculate the monetary value of lost recreational services to the public. 


yshivers on PROD1PC62 with RULES
57268 Federal Register / Vol. 73, No. 192 / Thursday, October 2, 2008 / Rules and Regulations 

(3) Other valuation methodologies. 

Other methodologies that measure 

compensable value in accordance with 

the public’s willingness to pay for the 

lost service, or with the cost of a project 

that restores, replaces, or acquires 

services equivalent of natural resource 

services lost pending restoration to 

baseline in a cost-effective manner, are 

acceptable methodologies to determine 

compensable value under this part. 

* * * * * 

■ 8. In § 11.91, remove paragraph (e). 

[FR Doc. E8–23225 Filed 10–1–08; 8:45 am] 

BILLING CODE 4310–RG–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 08–2067; MB Docket No. 08–135; RM– 

11467] 

Television Broadcasting Services; 

Freeport, IL 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: The Commission grants a 

petition for rulemaking filed by Gray 

Television Licensee, Inc., licensee of 

WIFR–DT, to substitute DTV channel 41 

for DTV channel 23 at Freeport, Illinois. 

DATES: The channel substitution is 

effective November 3, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Joyce L. Bernstein, Media Bureau, (202) 

418–1600. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Report 

and Order, MB Docket No. 08–135, 

adopted September 8, 2008, and 

released September 10, 2008. The full 

text of this document is available for 

public inspection and copying during 

normal business hours in the FCC’s 

Reference Information Center at Portals 

II, CY–A257, 445 12th Street, SW., 

Washington, DC 20554. This document 

will also be available via ECFS (http:// 

www.fcc.gov/cgb/ecfs/). (Documents 

will be available electronically in ASCII, 

Word 97, and/or Adobe Acrobat.) This 

document may be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554, telephone 1– 

800–478–3160 or via e-mail http:// 

www.BCPIWEB.com. To request this 

document in accessible formats 

(computer diskettes, large print, audio 

recording, and Braille), send an e-mail 

to fcc504@fcc.gov or call the 

Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). This document does not contain 

proposed information collection 

requirements subject to the Paperwork 

Reduction Act of 1995, Public Law 104– 

13. In addition, therefore, it does not 

contain any proposed information 

collection burden ‘‘for small business 

concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). Provisions of the Regulatory 

Flexibility Act 0f 1980 do not apply to 

this proceeding. 

The Commission will send a copy of 

this Report and Order in a report to be 

sent to Congress and the Government 

Accountability Office pursuant to the 

Congressional review Act, see 5 U.S.C. 

801(a)(1)(A). 

List of Subjects in 47 CFR Part 73 

Television, Television broadcasting. 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 73 as 

follows: 

PART 73—RADIO BROADCAST 

SERVICES 

■ 1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 336. 

§ 73.622(i) [Amended] 

■ 2. Section 73.622(i), the PostTransition Table of DTV Allotments 

under Illinois, is amended by adding 

channel 41 and removing channel 23 at 

Freeport. 

Federal Communications Commission. 

Clay C. Pendarvis, 

Associate Chief, Video Division, Media 

Bureau. 

[FR Doc. E8–23157 Filed 10–1–08; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF TRANSPORTATION 

49 CFR Parts 1 and 89 

[Docket No. DOT–OST–1999–6189] 

RIN 9991–AA53 

Organization and Delegation of Powers 

and Duties; Assistant Secretary for 

Budget and Programs 

AGENCY: Office of the Secretary of 

Transportation. 

ACTION: Final rule. 

SUMMARY: This amendment delegates 

debt collection, compromise, 

suspension and termination authority 

under 31 U.S.C. 3711 (except with 

respect to Working Capital Fund claims) 

from the Secretary of Transportation 

(Secretary) to the Assistant Secretary for 

Budget and Programs by removing that 

authority from the Assistant Secretary 

for Administration and granting it to the 

Assistant Secretary for Budget and 

Programs. In addition, this rulemaking 

removes a reporting requirement related 

to the delegation. 

DATES: This final rule is effective on 

October 2, 2008. 

FOR FURTHER INFORMATION CONTACT: Beth 

Kramer, Office of General Counsel, 1200 

New Jersey Avenue, SE., Room W96– 

491, Washington, DC 20590, Telephone: 

(202) 366–0365. 

SUPPLEMENTARY INFORMATION: Title 49 of 

the Code of Federal Regulations (CFR) 

1.59(c)6) and 89.5(a) delegate to the 

Assistant Secretary for Administration 

the Secretary’s authority under 31 

U.S.C. 3711 to collect, compromise, 

suspend or end collection action on 

claims of the United States not 

exceeding $100,000 (excluding interest) 

arising out of the activities of, or 

referred to, the Office of the Secretary. 

The Secretary has determined that such 

authority (excluding authority to collect, 

compromise, suspend or end collection 

action on claims pertaining to the 

Working Capital Fund) should be 

delegated to the Assistant Secretary for 

Budget and Programs instead of the 

Assistant Secretary for Administration. 

This rulemaking makes the following 

changes to reflect the change in 

delegation: 

• Adds ‘‘debt and’’ to 49 CFR 1.23(f); 

• Adds a new paragraph (j) to 49 CFR 

1.58; 

• Adds language regarding the 

Working Capital Fund exclusion to 49 

CFR 1.59(c)(6); 

• Adds language regarding claims 

related to the Working Capital Fund to 

49 CFR 89.5(a), renumbers subsection 

§ 89.5(b) as § 89.5(c), and adds a new 

provision at § 89.5(b); and 

• Removes ‘‘, reports,’’ from the 

heading of § 89.15, adds ‘‘and the 

Assistant Secretary for Budget and 

Programs’’ to § 89.15(b)(1), removes 

§ 89.15(b)(2), and renumbers paragraph 

(b)(3) as (b)(2). 

Since this amendment relates to 

departmental management, 

organization, procedure, and practice, 

notice and comment are unnecessary 

under 5 U.S.C. 553(b). Further, since the 

amendment expedites the Department’s 

ability to meet the statutory intent of the 

applicable laws and regulations covered 

by this delegation, the Secretary finds 

good cause under 5 U.S.C. 553(d)(3) for 


yshivers on PROD1PC62 with RULES