[Code of Federal Regulations]
[Title 43, Volume 1]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR11.38]

[Page 256-258]
 
                    TITLE 43--PUBLIC LANDS: INTERIOR
 
PART 11--NATURAL RESOURCE DAMAGE ASSESSMENTS--Table of Contents
 
                    Subpart C--Assessment Plan Phase
 
Sec. 11.38  Assessment Plan--preliminary estimate of damages.

    (a) Requirement. When performing a type B assessment pursuant to the 
requirements of subpart E of this part, the authorized official shall 
develop a preliminary estimate of: the anticipated costs of restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
for the injured natural resources; and the compensable value, as defined 
in Sec. 11.83(c) of this part, of the injured natural resources,

[[Page 257]]

if the authorized official intends to include compensable value in the 
damage claim. This preliminary estimate is referred to as the 
preliminary estimate of damages. The authorized official shall use the 
guidance provided in this section, to the extent possible, to develop 
the preliminary estimate of damages.
    (b) Purpose. The purpose of the preliminary estimate of damages is 
for reference in the scoping of the Assessment Plan to ensure that the 
choice of the scientific, cost estimating, and valuation methodologies 
expected to be used in the damage assessment fulfills the requirements 
of reasonable cost, as that term is used in this part. The authorized 
official will also use the preliminary estimate of damages in the review 
of the Assessment Plan, as required in Sec. 11.32(f) of this part, to 
ensure the requirements of reasonable cost are still met.
    (c) Steps. The preliminary estimate of damages should include 
consideration of the ability of the resources to recover naturally and, 
if relevant, the compensable value through the recovery period with and 
without possible alternative actions. The authorized official shall 
consider the following factors, to the extent possible, in making the 
preliminary estimate of damages:
    (1) The preliminary estimate of costs of restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
should include consideration of a range of possible alternative actions 
that would accomplish the restoration, rehabilitation, replacement, and/
or acquisition of the equivalent of the injured natural resources.
    (i) The preliminary estimate of costs should take into account the 
effects, or anticipated effects, of any response actions.
    (ii) The preliminary estimate of costs should represent the expected 
present value of anticipated costs, expressed in constant dollars, and 
should include direct and indirect costs, and include the timing of 
those costs. The provisions detailed in Secs. 11.80-11.84 of this part 
are the basis for the development of the estimate.
    (iii) The discount rate to be used in developing the preliminary 
estimate of costs shall be that determined in accordance with the 
guidance in Sec. 11.84(e) of this part.
    (2) The preliminary estimate of compensable value should be 
consistent with the range of possible alternatives for restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
being considered.
    (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 and their 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 Secs. 11.80-11.84 of 
this part are the basis for the development of this estimate.
    (ii) The preliminary estimate of compensable value should take into 
account the effects, or anticipated effects, of any response actions.
    (iii) The discount rate to be used in developing the preliminary 
estimate of compensable value shall be that determined in accordance 
with the guidance in Sec. 11.84(e) of this part.
    (d) Content and timing. (1) In making the preliminary estimate of 
damages, the authorized official should rely upon existing data and 
studies. The authorized official should not undertake significant new 
data collection or perform significant modeling efforts at this stage of 
the assessment planning phase.
    (2) Where possible, the authorized official should make the 
preliminary estimate of damages before the completion of the Assessment 
Plan as provided for in Sec. 11.31 of this part. If there is not 
sufficient existing data to make the preliminary estimate of damages at 
the same time as the assessment planning phase, this analysis may be

[[Page 258]]

completed later, at the end of the Injury Determination phase of the 
assessment, at the time of the Assessment Plan review.
    (3) The authorized official is not required to disclose the 
preliminary estimate before the conclusion of the assessment. At the 
conclusion of the assessment, the preliminary estimate of damages, along 
with its assumptions and methodology, shall be included in the Report of 
the Assessment as provided for in Sec. 11.91 of this part.
    (e) Review. The authorized official shall review, and revise as 
appropriate, the preliminary estimate of damages at the end of the 
Injury Determination and Quantification phases. If there is any 
significant modification of the preliminary estimate of damages, the 
authorized official shall document it in the Report of the Assessment.

[59 FR 14282, Mar. 25, 1994. Redesignated at 61 FR 20610, May 7, 1996]