        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 300
        [EPA-HQ-SFUND-2008-0577; FRL-10011-55-Region 5]
        National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the U.S. Smelter and Lead Refinery, Inc. Superfund Site

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule; notification of intent.

          SUMMARY:
          The Environmental Protection Agency (EPA) Region 5 is issuing a Notice of Intent to Delete 671 properties located in Zones 2 and 3 of Operable Unit 1 (OU1) of the U.S. Smelter and Lead Refinery, Inc. Superfund Site (USS Lead Site or Site) in East Chicago, Indiana, from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL, promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the State of Indiana, through the Indiana Department of Environmental Management (IDEM), have determined that all appropriate response actions under CERCLA have been completed for the identified properties. However, this deletion does not preclude future actions under Superfund.

          DATES:
          Comments must be received by August 7, 2020.

          ADDRESSES:

          Submit your comments, identified by Docket ID No. EPA-HQ-SFUND-2008-0577, by one of the following methods: https://www.regulations.gov. Follow the on-line instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

            Email: Deletions@usepa.onmicrosoft.com.

            Phone: Public comment by phone may be made by calling (312) 353-6284 and following the directions provided for public comment.

          Written comments submitted by mail are temporarily suspended and no hand deliveries will be accepted. We encourage the public to submit comments via email or at https://www.regulations.gov.

            Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND-2008-0577. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at https://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through https://www.regulations.gov or email. The https://www.regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through https://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

            Docket: All documents in the docket are listed in the https://www.regulations.gov index, Docket ID No. EPA-HQ-SFUND-2008-0577. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically at https://www.regulations.gov, Docket ID No. EPA-HQ-SFUND-2008-0577 and at https://www.epa.gov/uss-lead-superfund-site or you may contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

          The EPA is temporarily suspending its Docket Center and Regional Records Centers for public visitors to reduce the risk of transmitting COVID-19. In addition, many site information repositories are closed and information in these repositories, including the deletion docket, has not been updated with hardcopy or electronic media. For further information and updates on EPA Docket Center services, please visit us online at https://www.epa.gov/dockets.

          The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.

          FOR FURTHER INFORMATION CONTACT:

          Karen Cibulskis, NPL Deletion Coordinator, U.S. Environmental Protection Agency Region 5, at (312) 886-1843 or via email at cibulskis.karen@epa.gov.

        SUPPLEMENTARY INFORMATION:
        Table of Contents

          I. Introduction
          II. NPL Deletion Criteria
          III. Deletion Procedures
          IV. Basis for Partial Site Deletion

        I. Introduction
        EPA Region 5 announces its intent to delete 671 properties located in Zones 2 and 3 of OU1 of the USS Lead Site from the NPL and requests public comment on this proposed action. The properties proposed for deletion are listed in Attachment B of the report: Site-Specific Justification for the Deletion of 671 Properties in Zones 2 and 3 of Operable Unit 1 of the U.S. Smelter and Lead Refinery, Inc. Superfund Site from the National Priorities List, East Chicago, Indiana (Site-Specific Justification Report). A copy of the Site-Specific Justification Report is available in the deletion docket for the Site.
        The other portions of the USS Lead Site, including Zone 1 of OU1, the other properties in Zones 2 and 3 of OU1 not listed in Attachment B of the Site-Specific Justification Report, and Operable Unit 2, are not being considered for deletion as part of this action and will remain on the NPL.
        The NPL constitutes Appendix B of 40 CFR part 300, which is the NCP, which EPA promulgated pursuant to Section 105 of CERCLA of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in 40 CFR 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.

        EPA will accept comments on its proposal to delete these 671 properties from the NPL for thirty (30) days after publication of this document in the Federal Register.
        Section II of this document explains the criteria for deleting sites from the NPL. Section III of this document discusses the procedures that EPA is using for this proposed action. Section IV of this document discusses where to access and review information that demonstrates how the deletion criteria have been met for the 671 properties in Zones 2 and 3 of OU1 of the USS Lead Site proposed for deletion.
        II. NPL Deletion Criteria
        The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites, or portions thereof, may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:
        i. Responsible parties or other persons have implemented all appropriate response actions required;
        ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
        iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.
        Pursuant to CERCLA Section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site or a portion of a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.
        III. Deletion Procedures
        The following procedures apply to deletion of the 671 properties in Zones 2 and 3 of OU1 of the USS Lead from the NPL:
        (1) EPA consulted with the State of Indiana prior to developing this Notice of Intent for Partial Deletion.
        (2) EPA has provided the State thirty (30) working days for review of this notice prior to publication of it today.
        (3) In accordance with the criteria discussed above, EPA has determined that no further response is appropriate for the 671 properties in Zones 2 and 3 of OU1 of the USS Lead Site proposed for deletion.
        (4) The State of Indiana, through the IDEM, concurred with deletion of these 671 properties in Zones 2 and 3 of OU1 of the USS Lead Site from the NPL on June 10, 2020.

        (5) Concurrently with the publication of this Notice of Intent for Partial Deletion in the Federal Register, an announcement of the availability of the Notice of Intent for Partial Deletion is being published in a major local newspaper, the Northwest Indiana Times. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent for Partial Deletion of the USS Lead Site from the NPL.

        (6) EPA placed copies of documents supporting the proposed partial deletion in the deletion docket and made these items available for public inspection and copying at https://www.regulations.gov, Docket ID No. EPA-HQ-SFUND-2008-0577 and at https://www.epa.gov/uss-lead-superfund-site.

        If comments are received within the 30-day public comment period on this proposed action, EPA will evaluate and respond appropriately to the comments before making a final decision to delete these 671 properties in Zones 2 and 3 of OU1 of the USS Lead Site from the NPL. If necessary, EPA will prepare a Responsiveness Summary to address any significant public comments received. After the public comment period, if EPA determines it is still appropriate to delete these 671 properties in Zones 2 and 3 of OU1 of the USS Lead Site from the NPL, the EPA will publish a final Notice of Partial Deletion in the Federal Register. Public notices, public submissions, and copies of the Responsiveness Summary, if prepared, will be made available to interested parties and in the docket listed above.
        Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site or a portion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.
        IV. Basis for Partial Site Deletion
        The EPA placed copies of a Site-Specific Justification Report and other documents supporting the proposed partial deletion in the deletion docket. The material provides explanation of EPA's rationale for the partial deletion and demonstrates how the 671 properties in Zones 2 and 3 of OU1 of the USS Lead Site proposed for deletion meet the deletion criteria. This information is made available for public inspection in the deletion docket at the locations identified above.

          List of Subjects in 40 CFR Part 300
          Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

          Authority:
          33 U.S.C. 1251 et seq.; 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.

          Dated: June 29, 2020.
          Kurt Thiede,
          Regional Administrator, Region 5.

      [FR Doc. 2020-14476 Filed 7-7-20; 8:45 am]
      BILLING CODE 6560-50-P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Parts 0, 4, and 12
        [PS Docket Nos. 13-75 and 11-60; Report No. 3001]
        Petition for Reconsideration of Action in Rulemaking Proceeding

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Petition for reconsideration.

          SUMMARY:
          In this document, a Motion for Clarification or, In the Alternative, Petition for Partial Reconsideration (Petition) has been filed in the Commission's Rulemaking proceeding by Intrado, Inc., on behalf of itself and its affiliate, Intrado Communications, Inc.

          DATES:
          Oppositions to the Petition must be filed on or before March 27, 2014. Replies to an opposition must be filed on or before April 7, 2014.

          ADDRESSES:
          Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.

          FOR FURTHER INFORMATION CONTACT:

          Eric P. Schmidt, Attorney Advisor, Public Safety and Homeland Security Bureau, (202) 418-1214 or eric.schmidt@fcc.gov<mailto:eric.schmidt@fcc.gov.>

        SUPPLEMENTARY INFORMATION:

        This is a summary of Commission's document, Report No. 3001, released February 27, 2014. The full text of Report No. 3001 is available for viewing and copying in Room CY-B402, 445 12th Street SW., Washington, DC or may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI) (1-800-378-3160).

          Subject: Improving 9-1-1 Reliability; Reliability and Continuity of Communications Networks, Including Broadband Technologies, FCC 13-158, published at 79 FR 3123, January 17, 2014 and at 79 FR 7589, February 10, 2014, in PS Docket Nos. 13-75 and 11-60. Published pursuant to 47 CFR 1.429(e). See § 1.4(b)(1) of the Commission's rules.

          Number of Petitions Filed: 1.

          Federal Communications Commission.
          Marlene H. Dortch,
          Secretary, Office of the Secretary, Office of Managing Director.

      [FR Doc. 2014-05261 Filed 3-11-14; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 190409351-9452-01]
        RIN 0648-XG972
        Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual Specifications

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule.

          SUMMARY:
          NMFS proposes to implement annual catch limits and management measures for the northern subpopulation of Pacific sardine (hereafter, Pacific sardine), for the fishing year from July 1, 2019, through June 30, 2020. The proposed action would prohibit most directed commercial fishing for Pacific sardine off the coasts of Washington, Oregon, and California. Pacific sardine harvest would be allowed only in the live bait fishery, minor directed fisheries, as incidental catch in other fisheries, or as authorized under exempted fishing permits. The incidental harvest of Pacific sardine would be limited to 20 percent by weight of all fish per trip when caught with other stocks managed under the Coastal Pelagic Species Fishery Management Plan or up to 2 metric tons when caught with non-Coastal Pelagic Species stocks. The proposed annual catch limit for the 2019-2020 Pacific sardine fishing year is 4,514 metric tons. This proposed rule is intended to conserve and manage the Pacific sardine stock off the U.S. West Coast.

          DATES:
          Comments must be received by June 12, 2019.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2019-0034, by any of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0034, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Lynn Massey, Sustainable Fisheries Division, NMFS West Coast Region, 501 W Ocean Blvd., Ste. 4200, Long Beach, CA 90802-4250; Attn: Lynn Massey.

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          A copy of the report “Assessment of Pacific Sardine Resource in 2019 for U.S.A. Management in 2019-2020” is available at https://www.pcouncil.org/wp-content/uploads/2019/04/E3_Supp_Att1_REVISED_Sardine_Assessment_Update_Review_Draft-full-version-electronic-only-DO-NOT-PRINT.pdf, and may be obtained from the West Coast Region (see ADDRESSES).

          FOR FURTHER INFORMATION CONTACT:
          Lynn Massey, West Coast Region, NMFS, (562) 436-2462, lynn.massey@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        NMFS manages the Pacific sardine fishery in the U.S. exclusive economic zone (EEZ) off the Pacific coast (California, Oregon, and Washington) in accordance with the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). The FMP and its implementing regulations require NMFS to set annual catch levels for the Pacific sardine fishery based on the annual specification framework and control rules in the FMP. These control rules include the harvest guideline (HG) control rule, which, in conjunction with the overfishing limit (OFL) and acceptable biological catch (ABC) rules in the FMP, are used to manage harvest levels for Pacific sardine, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq.

        During public meetings each year, the NMFS Southwest Fisheries Science Center (SWFSC) presents the estimated biomass for Pacific sardine to the Pacific Fishery Management Council's (Council) CPS Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel) and the Council's Scientific and Statistical Committee (SSC). The Team, Subpanel and SSC review the biomass and the status of the fishery, and recommend applicable catch limits and additional management measure. Following Council review and public comment, the Council adopts a biomass estimate and recommends catch limits and any in-season accountability measures to NMFS. NMFS publishes annual specifications in the Federal Register to establish these catch limits and management measures for each Pacific sardine fishing year. This rule proposes the Council's recommended catch limits for the 2019-2020 fishing year, as well as management measures to ensure that harvest does not exceed those limits, and adoption of an OFL and ABC that take into consideration uncertainty surrounding the current estimate of biomass for Pacific sardine.
        Recommended Catch Limits
        According to the FMP, the catch limit for the principal commercial fishery is determined using the FMP-specified HG formula. The HG formula in the CPS FMP is HG = [(Biomass-CUTOFF) * FRACTION * DISTRIBUTION] with the parameters described as follows:
        1. Biomass. The estimated stock biomass of Pacific sardine age one and above. For the 2019-2020 management season, this is 27,547 metric tons (mt).
        2. CUTOFF. This is the biomass level below which no HG is set. The FMP established this level at 150,000 mt.
        3. DISTRIBUTION. The average portion of the Pacific sardine biomass estimated in the EEZ off the Pacific coast is 87 percent.
        4. FRACTION. The temperature-varying harvest fraction is the percentage of the biomass above 150,000 mt that may be harvested.
        As described above, the Pacific sardine HG control rule, the primary mechanism for setting the annual directed commercial fishery catch limit, includes a CUTOFF parameter, which has been set as a biomass level of 150,000 mt. This amount is subtracted from the annual biomass estimate before calculating the applicable HG for the fishing year. Since this year's biomass estimate is below that value, the formula results in an HG of zero, and no Pacific sardine are available for the primary directed commercial fishery during the 2019-2020 fishing season. This would be the fifth consecutive year that the primary directed commercial fishery is closed.

        At the April 2019 Council meeting, the Council's SSC approved, and the Council adopted, the SWFSC's “Assessment of the Pacific Sardine Resource in 2019 for U.S. Management in 2019-2020”, available here: https://www.pcouncil.org/wp-content/uploads/2019/04/E3_Supp_Att1_REVISED_Sardine_Assessment_Update_Review_Draft-full-version-electronic-only-DO-NOT-PRINT.pdf. The resulting Pacific sardine biomass estimate of 27,547 mt was adopted as the best scientific information available for setting harvest specifications. Based on recommendations from its SSC and other advisory bodies, as well as the OFL and ABC control rules in the CPS FMP, the Council recommended, and NMFS is proposing, an OFL of 5,816 mt, an ABC of 4,514 mt, an annual catch limit (ACL) of 4,514 mt, and a prohibition on commercial Pacific sardine catch, unless it is harvested as part of the live bait, tribal, or minor directed fisheries, or as incidental catch in other fisheries. The Council also recommended an annual catch target (ACT) of 4,000 mt for the 2019-2020 fishing year. In conjunction with setting an ACT, the Council also recommended inseason and other management measures to ensure harvest opportunity under the ACT throughout the year (see below).
        Recommended Management Measures

        The proposed annual harvest limits and management measures were developed in the context of information, which has been communicated to the Council, that the sardine biomass has also declined below its minimum stock size threshold (MSST) of 50,000 mt defined in the CPS FMP. NMFS is in the process of reviewing the 2019 stock assessment (see ADDRESSES), and depending on the outcome of that review, might officially change the status of the Pacific sardine stock to overfished. Because the Council accepted that the biomass is below the 50,000 mt MSST, the FMP requires that incidental catch of sardine in other CPS fisheries be limited to an incidental allowance of no more than 20 percent by weight (instead of a maximum of 40 percent allowed when below the CUTOFF but above the MSST) and that incidental catch of live bait be limited to no more than 15 percent by weight.

        The Secretary is currently reviewing Amendment 17 to the CPS FMP, as recommended by the Council. Amendment 17, if approved, would remove the FMP's pre-specified 15 percent incidental landing limit that becomes effective for live bait if a stock managed under the CPS FMP becomes overfished. Therefore, Amendment 17 would provide flexibility to allow directed live bait fishing for Pacific sardine when Pacific sardine is overfished, provided that any such fishing is consistent with regulations and any rebuilding plan for the stock. NMFS published a Notice of Availability on Amendment 17 in the Federal Register on March 22, 2019 (84 FR 10768), and is soliciting public comments through May 21, 2019. Because Amendment 17 is still under Secretarial review, NMFS advised the Council to recommend management measures for the 2019-2020 fishing year that match the status quo FMP provisions (i.e., no directed live bait for overfished stocks and 15 percent maximum incidental limit on live bait for overfished stocks) and if desired, state its intent to use the provision of Amendment 17 (i.e., allow directed live bait for overfished stocks with no predetermined limits) if it is approved. Therefore, the Council's recommended management measure on live bait (see #1 below) differs depending on NMFS' forthcoming determination on Amendment 17. The statutory deadline for NMFS to make a decision to approve, disapprove, or partially approve Amendment 17 is June 20, 2019, however NMFS expects to make the decision prior to issuing the final rule for the 2019-20120 Pacific sardine harvest specifications.
        The following are the proposed management measures and inseason accountability measures for the Pacific sardine 2019-2020 fishing year:
        (1) If the Secretary of Commerce approves Amendment 17, then directed live bait fishing for sardine will be permitted and will be subject to accountability measures specified under number 2 below. If Amendment 17 is not approved, then live bait landings will be limited to the 15-percent maximum allowed by the current CPS FMP and will still be subject to accountability measures specified under number 2 below;
        (2) If landings in the live bait fishery reach 2,500 mt, NMFS will institute a 1-mt per trip limit of sardine to the live bait fishery;

        (3) A 20-percent incidental per landing by weight catch allowance will be applied to other CPS primary directed commercial fisheries (e.g., Pacific mackerel);
        (4) A 2-mt per trip incidental catch allowance will be applied to non-CPS fisheries; and
        (5) If the ACT of 4,000 mt is attained, NMFS will institute a 1-mt per trip limit of sardine to live bait, and a 1-mt per trip limit of incidentally-caught sardine when caught with other CPS.
        All sources of catch including any exempted fishing permit (EFP) set-asides, the live bait fishery, and other minimal sources of harvest, such as incidental catch in CPS and non-CPS fisheries, and minor directed fishing, will be accounted for against the ACT.

        The NMFS West Coast Regional Administrator would publish a notice in the Federal Register to announce when catch reaches the incidental limits as well as any changes to allowable incidental catch percentages. Additionally, to ensure that the regulated community is informed of any closure, NMFS would make announcements through other means available, including emails to fishermen, processors, and state fishery management agencies.
        In each of the previous 7 fishing years, the Quinault Indian Nation requested, and NMFS approved, a set-aside for the exclusive right to harvest Pacific sardine in the Quinault Usual and Accustomed Fishing Area off the coast of Washington State, pursuant to the 1856 Treaty of Olympia (Treaty with the Quinault). For the 2019-2020 fishing year, the Quinault Indian Nation has not requested a tribal set-aside and therefore none is proposed.
        At the April 2019 meeting, the Council also voted in support of two EFP proposals requesting an exemption from the prohibition to directly harvest Pacific sardine. This action accounts for NMFS approval of up to 405 mt of the ACL to be harvested under EFPs.

        This action must be effective by July 1, 2019. Otherwise the fishery will open without any catch limits or restrictions in place. In order to ensure that these harvest specifications are effective in time for the start of the July 1 fishing year, NMFS will solicit public comments on this proposed rule for 15 days rather than the standard 30 days. A 15-day comment period has been the practice since the 2015-2016 fishing year when the primary directed fishery for sardine was first closed. NMFS received the recommendations from the Council that form the basis for this rule only last month. The subject of this proposed rule—the establishment of the reference points—is considered a routine action, because they are calculated annually based on the framework control rules in the FMP. Additionally, the Council provides an opportunity for public comment each year at its April meeting before adopting the recommended harvest specifications and management measures for the proceeding fishing year.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
        This proposed rule is exempt from the procedures of E.O. 12866 because this action contains no implementing regulations.
        Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with the tribal representative on the Council who has agreed with the provisions that apply to tribal vessels.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities, for the following reasons:
        For Regulatory Flexibility Act (RFA) purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.
        The purpose of this proposed rule is to conserve the Pacific sardine stock by preventing overfishing, while still allowing harvest opportunity among differing fishery sectors. This will be accomplished by implementing the 2019-2020 annual specifications for Pacific sardine in the U.S. EEZ off the Pacific coast. The small entities that would be affected by the proposed action are the vessels that would be expected to harvest Pacific sardine as part of the West Coast CPS small purse seine fleet if the fishery were open, as well as fishermen targeting other CPS, sardine for live bait, or sardine in the minor directed fishery. In 2014, the last year that a directed fishery for Pacific sardine was allowed, there were approximately 81 vessels permitted to operate in the directed sardine fishery component of the CPS fishery off the U.S. West Coast; 58 vessels in the Federal CPS limited entry fishery off California (south of 39° N lat.); and a combined 23 vessels in Oregon and Washington's state Pacific sardine fisheries. The average annual per vessel revenue in 2014 for those vessels was well below the threshold level of $11 million; therefore, all of these vessels are considered small businesses under the RFA. Because each affected vessel is a small business, this proposed rule is considered to equally affect all of these small entities in the same manner. Therefore, this rule would not create disproportionate costs between small and large vessels/businesses.

        The CPS FMP and its implementing regulations require NMFS to annually set an OFL, ABC, ACL, and HG or ACT for the Pacific sardine fishery based on the specified harvest control rules in the FMP applied to the current stock biomass estimate for that year. The derived annual HG is the level typically used to manage the principal commercial sardine fishery and is the harvest level NMFS typically uses for profitability analysis each year. As stated above, the CPS FMP dictates that when the estimated biomass drops below a certain level (150,000 mt) there is no HG. Therefore, for the purposes of profitability analysis, this action is essentially proposing an HG of zero for the 2019-2020 Pacific sardine fishing season (July 1, 2019, through June 30, 2020). The estimated biomass used for management during the preceding fishing year (2018-2019) was also below 150,000 mt. Therefore, NMFS did not implement an HG for the 2018-2019 fishing year, thereby prohibiting the primary commercial directed Pacific sardine fishery. Since there is again no directed fishing for the 2019-2020 fishing year, this proposed rule will not change the potential profitability compared to the previous fishing year. Additionally, while the proposed 2019-2020 ACL is lower compared to previous years, it is still expected to account for the various fishery sector needs (i.e., live bait, incidental catch in other CPS fisheries, and minor directed fisheries).
        The revenue derived from harvesting Pacific sardine is typically only one of the sources of fishing revenue for the commercial vessels that participate in this fishery. As a result, the economic impact to the fleet from the proposed action cannot be viewed in isolation. From year to year, depending on market conditions and availability of fish, most CPS/sardine vessels supplement their income by harvesting other species. Many vessels in California also harvest anchovy, mackerel, and in particular, squid, making Pacific sardine only one component of a multi-species CPS fishery. Additionally, some sardine vessels that operate off of Oregon and Washington also fish for salmon in Alaska or squid in California during times of the year when sardine are not available. The purpose of the incidental catch limits proposed in this action are to ensure the vessels impacted by a prohibition on directly harvesting Pacific sardine can still access these other profitable fisheries while still minimizing Pacific sardine harvest.
        CPS vessels typically rely on multiple species for profitability because abundance of Pacific sardine, like the other CPS stocks, is highly associated with ocean conditions and seasonality. Variability in ocean conditions and season results in variability in the timing and location of CPS harvest throughout the year. Because each species responds to ocean conditions in its own way, not all CPS stocks are likely to be abundant at the same time. Therefore, as abundance levels and markets fluctuate, the CPS fishery as a whole has relied on a group of species for its annual revenues.
        Therefore the proposed action, if adopted, will not have a significant economic impact on a substantial number of small entities. As a result, an Initial Regulatory Flexibility Analysis is not required, and none has been prepared.
        This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.

          Authority:
          16 U.S.C. 1801 et seq.

          Dated: May 22, 2019.
          Samuel D. Rauch, III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2019-11040 Filed 5-24-19; 8:45 am]
       BILLING CODE 3510-22-P


        DEPARTMENT OF THE INTERIOR
        43 CFR Part 11
        RIN 1090-AA97
        Natural Resource Damages for Hazardous Substances

          AGENCY:
          Department of the Interior.

          ACTION:
          Proposed rulemaking.

          SUMMARY:

          We are proposing to revise 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. This notice seeks comment on the proposed revisions to the regulations in response to the biennial statutory review requirement, two court decisions, and the recommendations of the Department of the Interior's Natural Resource Damage Assessment and Restoration Federal Advisory Committee.

          DATES:
          We will accept comments through May 29, 2008.

          ADDRESSES:
          You may submit comments, identified by the number [insert RIN], by any of the following methods:

          —Federal rulemaking portal: http://www.regulations.gov. Follow the instruction for submitting comments.
          —Mail: Department of the Interior, Natural Resource Damage Assessment and Restoration Program, Mail Stop 3548, 1849 C Street, NW., Washington, DC 20240.
          —Hand delivery: Room 3548, 1849 C Street, NW., Washington, DC.

          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 Proposing To Revise Parts of the Regulations
          III. Major Issues Addressed by the Proposed Revisions
          A. Further Emphasizing Restoration Over Economic Damages, as Recommended by the Natural Resource Damage Assessment and Restoration Federal Advisory Committee
          B. Complying With Ohio v. Interior and Responding to Kennecott v. Interior

          C. Technical Corrections To Provide Consistent Timing Guidelines for the Administrative Assessment Process Set Out in the Rule

        I. What These 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 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 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 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, 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 proposing to revise certain parts of the type B procedures (case by case assessment provisions) in the regulations.
        II. Why We Are Proposing To Revise the Regulations
        CERCLA provides that we review and revise the regulations as appropriate every two years. 42 U.S.C. 9651(c)(3). The regulations are due for such a review. To assist in this 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 economic damages. This proposed 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 (D.C. Cir. 1989) (Ohio v. Interior); and Kennecott Utah Copper Corp. v. U.S. Department of the Interior, 88 F.3d 1191 (D.C. Cir. 1996) (Kennecott v. Interior). Finally, we are proposing 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 during prior rulemakings, and more informally during public meetings, symposiums, and discussion on natural resource damage assessment and restoration) from members of the private sector, representatives of federal, state, and tribal trustees, public interest groups, and others who have experience with the existing regulations;
        (c) The Ohio v. Interior opinion;
        (d) The Kennecott v. Interior opinion; and
        (e) The OPA regulations.
        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 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 proposed revisions. The following 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 regulations. 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 proposing to revise 43 CFR 11.83(c) to provide trustees with the option of estimating compensable values for losses pending restoration 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 proposed 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 proposing to add a brief description of these restoration-based methodologies to the non-exclusive list of economic valuation methodologies in the current regulation. Our proposed revisions do not sanction or bar the use of any particular methodology, so long as it complies with the “acceptance criteria” for relevance that appear in the rule.
        The list of proposed methodologies for assessing compensable values remains non-exclusive, allowing for the introduction of new and innovative techniques that may arise. In 43 CFR 11.83(a), the current regulations provide that when choosing among any cost estimation or valuation methodology, trustees should seek to 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 such feasibility and reliability, we are proposing to provide a list of factors that set out general principles of feasibility and reliability for all methodologies. This includes the cost reasonableness, cost effectiveness, and avoidance of double counting criteria in the current regulations, along with other factors—such as the ability to provide useful restoration information, peer review, and methodological standards—for trustees to consider when evaluating the reliability of all damage assessment methodologies. Each of the listed factors we are proposing may not be applicable in every case, but trustees continue to be required to document their consideration of relevant factors in the Report of Assessment. We solicit comment on providing the option for the use of restoration-based approaches and methodologies to resolve NRDAR claims.
        B. Complying With Ohio v. Interior and Responding to Kennecott v. Interior

        Several provisions of the current regulations were invalidated by the D.C. 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. We are proposing 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 proposed revision's focus on compensating for public losses pending restoration with restoration actions rather than monetary damages for the economic value of the losses would provide options for comparing functional losses from resource injuries to functional gains expected from restoration actions, which would 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 their 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 proposed revisions make clear, the metric for evaluating natural resource conditions for baseline restoration is 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 proposed revision to 43 CFR 11.80(b) clarifies that the measure of damages is the cost of restoring injured natural resources to their baseline level of services, and, 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. (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 propose to resolve 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. How We Have Complied With Rulemaking Requirements

          Regulatory Planning and Review under E.O. 12866—The Office of Management and Budget has reviewed the proposed 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 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 proposed 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 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 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 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 the increased focus on restoration in lieu of economic 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 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 proposed 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 proposed 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 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.” This rule and the proposed revisions do not require state trustees to take any action; therefore it does not impose any unfunded mandates. The rule and the proposed revisions do not preempt state law. The rule and the proposed 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 proposed revisions do not unduly burden the judicial system and meet the requirements of section 3(a) and 3(b)(2) of the Order. 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.

          Paperwork Reduction Act—The proposed revisions do not pose “identical questions” to, or impose “identical reporting, record keeping, or disclosure requirements,” on trustees. Therefore, the proposed 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 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 actions 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.
        Public Availability of Comments
        Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

          List of Subjects in 34 CFR Part 11
          Natural resources, Environmental protection.

          Dated: January 10, 2008.
          James E. Cason,
          Associate Deputy Secretary.

        For the reasons given in the preamble, we propose to amend 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 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 the restoration, rehabilitation, replacement, and/or acquisition of the equivalent of the injured resources to their baseline level of 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 through 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 restoration, rehabilitation, replacement, and/or acquisition of the equivalent of the injured natural resources to their baseline level of 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 restoration, rehabilitation, replacement, and/or acquisition of equivalent resources to their baseline level of 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 restoration, rehabilitation, replacement, and/or acquisition of equivalent resources to their baseline level of services, and, where relevant, the compensable value.

            6. In § 11.82, revise paragraphs (a), (b)(1)(iii), and (c)(1) 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 the restoration, rehabilitation, replacement, and/or acquisition of the equivalent of the injured natural resources to their baseline level of 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 restoration, rehabilitation, replacement, and/or acquisition of equivalent natural resources to their baseline level of services. 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 restore, rehabilitate, replace, and/or acquire the equivalent of the injured resources to their baseline, that is, the condition without a discharge or release as determined in § 11.72 of this part.

            (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, combination of management actions, and needs for resource replacements or acquisitions.

            7. In § 11.83, revise paragraphs (a)(1), (a)(3), and (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 restoration, rehabilitation, replacement, and/or acquisition of equivalent resources to their baseline level of services; and the compensable value of the services lost to the public through the completion of the restoration, rehabilitation, replacement, and/or acquisition of the equivalent of the injured resources to baseline.

            (3) Only those methodologies that are feasible and reliable for a particular incident and type of damage to be measured shall be utilized. The authorized official should consider the following factors to evaluate feasibility and reliability of methodologies. Each factor, however, may not be applicable to every case. The authorized official shall document the consideration of relevant factors in the Report of Assessment:
            (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) Can the methodology be implemented at a reasonable cost, as that term is used in this part?;
            (iii) Does the methodology avoid double counting or allow any double counting to be estimated and eliminated in the final damage calculation?;
            (iv) Is the methodology cost-effective, as that term is used in this part?;
            (v) Does the methodology address the particular natural resource injury and associated service loss in light of the nature, degree, and spatial and temporal extent of the injury?;
            (vi) Has the methodology been subject to peer review, either through publication or otherwise?;
            (vii) Does the methodology enjoy general or widespread acceptance by experts in the field?;
            (viii) Is the methodology subject to standards governing its application?;
            (ix) Are methodological inputs and assumptions supported by a clearly articulated rationale?;
            (x) Are cutting edge methodologies tested or analyzed sufficiently so as to be reasonably reliable under the circumstances?

            (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. 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.

            (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 to natural resource services lost pending restoration to baseline in a cost-effective manner, are acceptable methodologies to determine compensable value under this part.

            § 11.91
            [Amended]
            8. In § 11.91, remove paragraph (e).

       [FR Doc. E8-3683 Filed 2-28-08; 8:45 am]
      BILLING CODE 4310-RG-P