83 FR 43611 - Natural Resource Damages for Hazardous Substances
DEPARTMENT OF THE INTERIOR
Office of the Secretary Federal Register Volume 83, Issue 166 (August 27, 2018)
Office of the Secretary
Federal Register Volume 83, Issue 166 (August 27, 2018)
| Page Range | 43611-43613 | |
| FR Document | 2018-18498 |
[Federal Register Volume 83, Number 166 (Monday, August 27, 2018)] [Proposed Rules] [Pages 43611-43613] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-18498] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Office of the Secretary 43 CFR Part 11 [Docket No. DOI-2018-0006; XXXD5198NI.DS61600000.DNINR0000.000000.DX61604] RIN 1090-AB17 Natural Resource Damages for Hazardous Substances AGENCY: Office of Restoration and Damage Assessment, Interior. ACTION: Advance notice of proposed rulemaking; request for public comment. ----------------------------------------------------------------------- SUMMARY: The Office of Restoration and Damage Assessment (ORDA) is seeking comments and suggestions from State, Tribal, and Federal natural resource co-trustees, other affected parties, and the interested public on whether revisions to the regulations for conducting natural resource damage assessments and restoration (NRDAR) for hazardous substance releases are needed, and if so, what specific revisions should be considered. DATES: We will accept comments through October 26, 2018. ADDRESSES: You may submit comments to ORDA on this ANPRM by any of the following methods. Please reference the Regulation Identifier Number (RIN) DOI-2018-0006 in your comments.Electronically: Go to http://www.regulations.gov. In the ``Search'' box enter ``DOI-2018-0006.'' Follow the instructions to submit public comments. We will post all comments. Hand deliver or mail comments to the Office of Restoration and Damage Assessment, U.S. Department of the Interior, 1849 C Street Northwest, Mail Stop/Room 5538, Washington, DC 20240. FOR FURTHER INFORMATION CONTACT: Steve Glomb, Director, Office of Restoration and Damage Assessment at (202) 208-4863 or email to [email protected]. [[Page 43612]] SUPPLEMENTARY INFORMATION: The regulations provide procedures that State, Tribal, and Federal natural resource co-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 because of releases of hazardous substances into the environment. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)--which authorizes natural resource damage claims by States, federally recognized Indian Tribes, and the Federal government--specifies that the regulations are optional, but if the State, Tribal, and Federal governments (described as natural resource ``co-trustees'' by CERCLA) utilize them, they are entitled to a ``rebuttable presumption'' on their claim in any subsequent legal proceeding. This notice seeks comment and suggestions in response to the CERCLA biennial review requirement and Executive Order 13777 (February 24, 2017), which directed the Department of the Interior (DOI) and other Federal agencies to establish Regulatory Reform Task Forces to evaluate existing regulations and make recommendations regarding repeal, replacement, or modification, consistent with applicable law. Background CERCLA authorizes the Federal government, States, and federally recognized Indian Tribes to act as ``trustees'' on behalf of the public, for the purpose of bringing claims for injury to natural resources injured or destroyed by hazardous substance releases. Such claims are not fines or penalties, and the measure of damages is calculated by the cost to restore or replace the injured or destroyed natural resources. Trustees may also recover compensation for services the resources would have provided to the public pending restoration, along with the reasonable cost of assessing injury and determining appropriate restoration. The statute requires trustees to spend restoration recoveries ``only to restore, replace, or acquire the equivalent'' of injured natural resources pursuant to a publicly reviewed restoration plan. Section 301(c) of CERCLA requires the promulgation of regulations to guide natural resource damage assessment and restoration. The statute explicitly provides that the regulations are not mandatory, but if State, Tribal, or Federal trustees conduct an assessment in accordance with the regulations, they would receive a ``rebuttable presumption'' for their claim in any subsequent administrative or judicial proceeding. The Department of the Interior (DOI) was designated by the President to develop the regulations currently in effect at 43 CFR part 11. DOI previously developed two types of NRDAR regulations (as specified by CERCLA). Standard procedures for simplified assessments requiring minimal field observations (the Type A Rule); and site- specific procedures for detailed assessment in individual cases (the Type B Rule). The CERCLA NRDAR Regulations were last revised in 2008. These revisions to the Type B Rule emphasized natural resource restoration over litigation and monetary damages, made technical corrections to procedural timing inconsistencies, and responded to two court decisions addressing previous versions of 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). The 2008 revisions were based on the report of a committee convened by DOI under the Federal Advisory Committee Act (FACA) to make recommendations on improving NRDAR practice. The committee was comprised of representatives from States, Tribes, Federal agencies, industrial corporations, industry consultants and attorneys, local and national non-governmental organizations, and academics. Unlike previous iterations of the NRDAR regulations, the final regulatory revisions based on the FACA Committee report were not challenged by States, Tribes, industry or environmental groups. Description of Information Requested We are interested in comments or suggestions that improve the efficiency and cost effectiveness of the NRDAR process. An internal biennial review of the CERCLA NRDAR regulations identified some remaining issues from the NRDAR FACA Committee Report that could be addressed, and NRDAR practice issues that have developed or progressed since the last revision of the regulations. DOI is particularly interested in comments and suggestions related to these issues, outlined below. We also welcome comments and suggestions on any other aspect of the regulations that trustees, stakeholders, and the general public would like us to consider. Simplification and ``Plain Language'' With the exceptions of the provision of the Type B Regulations that were revised in 2008, the CERCLA NRDAR regulations are arguably complicated, overly prescriptive, repetitive, and dense--particularly when compared to the Oil Pollution Act (OPA) NRDAR Rule promulgated by the National Oceanic and Atmospheric Administration at 15 CFR part 990. A number of stakeholders have suggested that DOI should consider a comprehensive ``plain English'' revision to the CERCLA NRDAR Regulations that closely aligns with the structure of the existing OPA NRDAR Regulations. Type A Regulations The Type A Regulations were designed to result in efficient, cost effective, standardized assessments. It has been challenging, however, to develop workable Type A Regulations that are streamlined and utilize minimal actual field observations but are still relevant and reliable enough to be entitled to a rebuttable presumption of correctness. Accordingly, DOI is seeking comments or suggestions regarding revision to and utilization of the CERCLA NRDAR Type A Regulations. Early Emphasis on Restoration Over Damages The NRDAR FACA Committee Report recommended that DOI could encourage a restoration focus and negotiated agreements by revising the regulations to encourage early scoping of restoration opportunities at NRDAR sites. DOI is interested in any additional comments or suggestions on where specifically in the assessment process restoration scoping may be cost effective and appropriate and how that could best be addressed in the regulations. Procedures to Further Encourage Negotiated Settlements and Early Restoration Since the last revision of CERCLA NRDAR Regulations, a number of matters have utilized partial negotiated settlements early in the assessment process to cost effectively resolve discrete NRDAR claims and re-inforce an overall restoration focus for ultimate comprehensive resolution. However, the current regulations offer little guidance on how to align early restoration settlements with existing statutory and regulatory requirements for assessment and restoration planning. Advance Restoration and Restoration Banking Restoration ``banking'' and advance restoration--where restoration is undertaken in anticipation of marketing portions of such restoration to responsible parties to address natural resource injury caused by releases of [[Page 43613]] hazardous substances--has been considered at a number of sites since the last revision of the CERCLA NRDAR regulations. Some States (such as Louisiana) have enacted specific statutory provisions and promulgated regulations on NRDAR banking. The existing CERCLA NRDAR regulations do not provide any guidance on the use of advance restoration and restoration banking techniques. National Environmental Policy Act (NEPA) Compliance The NRDAR FACA Committee Report encouraged DOI to adopt Department- wide categorical exclusions from NEPA as appropriate and to ensure that compliance with NEPA requirements occurs concurrently with NRDAR restoration planning. DOI is interested in comments or suggestions whether that would best be addressed in the NRDAR regulations, NEPA regulations, or in Departmental guidance. Public Comment Procedures DOI is not obligated to consider comments that we receive after the close of the comment period for this ANPRM, or comments that are delivered to an address other than those listed in this notice. After the comment period for this ANPRM closes, DOI will review all comment submissions. Upon consideration, DOI may publish a notice of proposed rulemaking. We are particularly interested in receiving comments and suggestions about the topics identified in the Description of Information Requested section. Written comments that are specific, explain the rationale for the comment or suggestion, address the issues outlined in this notice, and where possible, refer to specific statutes, existing regulations, case law, or NRDAR practices are most useful. Before including your address, phone number, email address or other personal identifying information in you comment, you should be aware that your entire comment--including your personal identifying information--might be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review we cannot guarantee that we will do so. Authority: 42 U.S.C. 9601, secs. 104,107,111(I), 122. Steve Glomb, Director, Office of Restoration and Damage Assessment. [FR Doc. 2018-18498 Filed 8-24-18; 8:45 am] BILLING CODE 4334-63-P
![Federal Register / Vol. 83, No. 166 / Monday, August 27, 2018 / Proposed Rules 43611
or solicitation; (ii) the telehealth party’s expense. Not responding to this comments we receive by the date and
technologies must be provided for the RFI does not preclude participation in time specified in the DATES section of
purpose of furnishing telehealth any future procurement, if conducted. It this preamble, and, if we proceed with
services related to the patient’s ESRD; is the responsibility of the potential a subsequent document, we may
and (iii) the provision of the telehealth responders to monitor this RFI respond to the comments in the
technologies must ‘‘meet[] any other announcement for additional preamble to that document.
requirements set forth in regulations information pertaining to this request. Dated: August 20, 2018.
promulgated by the Secretary.’’ Please note that OIG will not respond to
Daniel R. Levinson,
i. For the purposes of this exception, questions about the policy issues raised
please provide input on how ‘‘telehealth Inspector General.
in this RFI. Contractor support
technologies’’ should be defined. Please personnel may be used to review RFI [FR Doc. 2018–18519 Filed 8–24–18; 8:45 am]
provide examples of telehealth responses. BILLING CODE 4152–01–P
technologies that may be used to furnish Responses to this RFI are not offers
telehealth services related to a and cannot be accepted by the U.S.
beneficiary’s ESRD (e.g., technologies Government to form a binding contract DEPARTMENT OF THE INTERIOR
that address services on the Medicare or issue a grant. Information obtained as
telehealth list). Also, please indicate a result of this RFI may be used by the Office of the Secretary
whether telehealth technologies should U.S. Government for program planning
include services. If so, please explain, in on a nonattribution basis. Respondents 43 CFR Part 11
detail, what services should be should not include any information that
considered ‘‘telehealth technologies.’’ might be considered proprietary or [Docket No. DOI–2018–0006; XXXD5198NI.
ii. For the purposes of this exception, DS61600000.DNINR0000.000000.DX61604]
confidential. This RFI should not be
should OIG include protections or construed as a commitment or RIN 1090–AB17
safeguards as ‘‘any other requirements authorization to incur costs for which
set forth in regulations promulgated by reimbursement would be required or Natural Resource Damages for
the Secretary?’’ If so, please explain sought. All submissions become U.S. Hazardous Substances
what protections or safeguards and why. Government property and will not be
returned. OIG may publicly post the AGENCY: Office of Restoration and
4. Intersection of Physician Self-Referral Damage Assessment, Interior.
Law and Anti-Kickback Statute comments received or a summary
thereof. ACTION: Advance notice of proposed
Please share any feedback regarding rulemaking; request for public
specific circumstances in which (i) IV. Collection of Information comment.
exceptions to the physician self-referral Requirements
law and safe harbors to the anti- This document does not impose SUMMARY: The Office of Restoration and
kickback statute should align for information collection requirements, Damage Assessment (ORDA) is seeking
purposes of the goals of this RFI; and (ii) that is, reporting, recordkeeping, or comments and suggestions from State,
exceptions to the physician self-referral third-party disclosure requirements. Tribal, and Federal natural resource co-
law in furtherance of care coordination However, section III of this document trustees, other affected parties, and the
or value-based care should not have a does contain a general solicitation of interested public on whether revisions
corresponding safe harbor to the anti- comments in the form of a request for to the regulations for conducting natural
kickback statute. information. In accordance with the resource damage assessments and
Respondents are encouraged to implementing regulations of the restoration (NRDAR) for hazardous
provide complete but concise and Paperwork Reduction Act (PRA), substance releases are needed, and if so,
organized responses, including any specifically 5 CFR 1320.3(h)(4), this what specific revisions should be
relevant data and specific examples. general solicitation is exempt from the considered.
Respondents are not required to address PRA. Facts or opinions submitted in DATES: We will accept comments
every issue or respond to every question response to general solicitations of through October 26, 2018.
discussed in this RFI to have their comments from the public, published in ADDRESSES: You may submit comments
responses considered. All responses the Federal Register or other to ORDA on this ANPRM by any of the
will be considered, provided they publications, regardless of the form or following methods. Please reference the
contain information OIG can use to format thereof, provided that no person Regulation Identifier Number (RIN)
identify the commenter. is required to supply specific
Please note: This is a request for DOI–2018–0006 in your comments.
information pertaining to the • Electronically: Go to http://
information only. This RFI is issued commenter, other than that necessary
solely for information and planning www.regulations.gov. In the ‘‘Search’’
for self-identification, as a condition of box enter ‘‘DOI–2018–0006.’’ Follow the
purposes; it does not constitute a the agency’s full consideration, are not
Request for Proposal (RFP), application, instructions to submit public comments.
generally considered information We will post all comments.
proposal abstract, or quotation. This RFI subject to the PRA. Consequently, there
does not commit the U.S. Government • Hand deliver or mail comments to
is no need for review by the Office of the Office of Restoration and Damage
to contract for any supplies or services Management and Budget under the
or make a grant award. Further, OIG is Assessment, U.S. Department of the
authority of the PRA (44 U.S.C. 3501 et
amozie on DSK3GDR082PROD with PROPOSALS1
not seeking proposals through this RFI Interior, 1849 C Street Northwest, Mail
seq.). Stop/Room 5538, Washington, DC
and will not accept unsolicited
proposals. Respondents are advised that V. Response to Comments 20240.
the U.S. Government will not pay for Because of the large number of public FOR FURTHER INFORMATION CONTACT:
any information or administrative costs comments we normally receive on Steve Glomb, Director, Office of
incurred in response to this RFI; all Federal Register documents, we are not Restoration and Damage Assessment at
costs associated with responding to this able to acknowledge or respond to them (202) 208–4863 or email to steve_
RFI will be solely at the interested individually. We will consider all glomb@ios.doi.gov.
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![Federal Register / Vol. 83, No. 166 / Monday, August 27, 2018 / Proposed Rules 43613
hazardous substances—has been FEDERAL COMMUNICATIONS overnight U.S. Postal Service mail. All
considered at a number of sites since the COMMISSION filings must be addressed to the
last revision of the CERCLA NRDAR Commission’s Secretary, Office of the
regulations. Some States (such as 47 CFR Part 73 Secretary, Federal Communications
Louisiana) have enacted specific [MB Docket No. 18–214, GN Docket No. 12– Commission.
statutory provisions and promulgated 268; FCC 18–113] • People with Disabilities: Contact the
regulations on NRDAR banking. The FCC to request reasonable
existing CERCLA NRDAR regulations do LPTV, TV Translator, and FM accommodations (accessible format
not provide any guidance on the use of Broadcast Station Reimbursement, documents, sign language interpreters,
advance restoration and restoration Expanding the Economic and CART, etc.) by email: FCC504@fcc.gov
banking techniques. Innovation Opportunities of Spectrum or phone: (202) 418–0530 or TTY: (202)
Through Incentive Auctions 418–0432. For detailed instructions for
National Environmental Policy Act submitting comments and additional
(NEPA) Compliance AGENCY: Federal Communications information on the rulemaking process,
Commission. see the supplementary information
The NRDAR FACA Committee Report ACTION: Proposed rule.
encouraged DOI to adopt Department- section of this document.
wide categorical exclusions from NEPA SUMMARY: In this document, the FOR FURTHER INFORMATION CONTACT: Kim
as appropriate and to ensure that Commission proposes rules to Matthews of the FCC’s Media Bureau,
compliance with NEPA requirements implement Congress’s recent directive Policy Division, Kim.Matthews@fcc.gov,
occurs concurrently with NRDAR that we reimburse certain Low Power (202) 418–2154.
restoration planning. DOI is interested Television (LPTV), television translator SUPPLEMENTARY INFORMATION: This is a
in comments or suggestions whether (TV translator), and FM broadcast summary of the Commission’s Notice of
that would best be addressed in the stations for costs incurred as a result of Proposed Rulemaking (NPRM), FCC 18–
NRDAR regulations, NEPA regulations, the Commission’s broadcast television 113, adopted August 2, 2018 and
or in Departmental guidance. spectrum incentive auction. When released August 3, 2018. The full text of
Congress authorized the Commission to this document is available for public
Public Comment Procedures conduct the incentive auction, it inspection and copying during regular
DOI is not obligated to consider required the Commission to reimburse business hours in the FCC Reference
comments that we receive after the close certain costs incurred by full power and Center, Federal Communications
of the comment period for this ANPRM, Class A television licensees and Commission, 445 12th Street SW, Room
or comments that are delivered to an multichannel video program CY–A257, Washington, DC 20554. The
address other than those listed in this distributors (MVPDs). On March 23, complete text may be purchased from
notice. After the comment period for 2018, Congress adopted the the Commission’s copy contractor, 445
this ANPRM closes, DOI will review all Reimbursement Expansion Act (REA), 12th Street SW, Room CY–B402,
comment submissions. Upon which, among other things, expands the Washington, DC 20554. This document
consideration, DOI may publish a notice list of entities eligible to be reimbursed will also be available via ECFS at http://
of proposed rulemaking. for auction-related expenses to include fjallfoss.fcc.gov/ecfs/. Documents will
LPTV, TV translator, and FM broadcast be available electronically in ASCII,
We are particularly interested in stations, and to provide additional Microsoft Word, and/or Adobe Acrobat.
receiving comments and suggestions funds to the Reimbursement Fund to be Alternative formats are available for
about the topics identified in the used for this purpose. The REA requires people with disabilities (Braille, large
Description of Information Requested the Commission to complete a print, electronic files, audio format) by
section. Written comments that are rulemaking to adopt a reimbursement sending an email to fcc504@fcc.gov or
specific, explain the rationale for the process for LPTV, TV translator, and FM calling the Commission’s Consumer and
comment or suggestion, address the stations within a year from the adoption Governmental Affairs Bureau at (202)
issues outlined in this notice, and where date of the Act. This NPRM commences 418–0530 (voice), (202) 418–0432
possible, refer to specific statutes, the proceeding to implement this (TTY).
existing regulations, case law, or directive and enable the Commission to The NPRM may result in new or
NRDAR practices are most useful. meet this statutory deadline. revised information collection
Before including your address, phone DATES: Comments may be filed on or requirements. If the Commission adopts
number, email address or other personal before September 26, 2018; and reply any new or revised information
identifying information in you comments may be filed on or before collection requirements, the
comment, you should be aware that October 26, 2018. Commission will publish a notice in the
your entire comment—including your ADDRESSES: Interested parties may
Federal Register inviting the public to
personal identifying information—might submit comments and reply comments, comment on such requirements, as
be made publicly available at any time. identified by MB Docket No. 18–214 required by the Paperwork Reduction
While you may ask us in your comment and GN Docket No. 12–268, by any of Act of 1995. In addition, pursuant to the
to withhold your personal identifying the following methods: Small Business Paperwork Relief Act of
information from public review we • Federal eRulemaking Portal: http:// 2002, the Commission will seek specific
cannot guarantee that we will do so. www.regulations.gov. Follow the comment on how it might ‘‘further
amozie on DSK3GDR082PROD with PROPOSALS1
instructions for submitting comments. reduce the information collection
Authority: 42 U.S.C. 9601, secs.
104,107,111(I), 122. • Federal Communications burden for small business concerns with
Commission’s website: http://fjallfoss. fewer than 25 employees.’’
Steve Glomb, fcc.gov/ecfs2/. Follow the instructions Synopsis
Director, Office of Restoration and Damage for submitting comments.
Assessment. • Mail: Filings can be sent by hand or I. Introduction
[FR Doc. 2018–18498 Filed 8–24–18; 8:45 am] messenger delivery, by commercial 1. In the NPRM, we propose rules to
BILLING CODE 4334–63–P overnight courier, or by first-class or implement Congress’s recent directive
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Document Created: 2018-08-25 01:48:25
Document Modified: 2018-08-25 01:48:25
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Advance notice of proposed rulemaking; request for public comment. | |
| Dates | We will accept comments through October 26, 2018. | |
| Contact | Steve Glomb, Director, Office of Restoration and Damage Assessment at (202) 208-4863 or email to [email protected] | |
| FR Citation | 83 FR 43611 | |
| RIN Number | 1090-AB17 |
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