[Federal Register Volume 69, Number 6 (Friday, January 9, 2004)]
[Rules and Regulations]
[Pages 1529-1537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-473]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 215 and 218

RIN 0596-AC15


Predecisional Administrative Review Process for Hazardous Fuel 
Reduction Projects Authorized Under the Healthy Forests Restoration Act 
of 2003

AGENCY: Forest Service, USDA.

ACTION: Interim final rule; request for comments.

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SUMMARY: This interim final rule establishes the sole process by which 
the public may seek administrative review and file objections to 
proposed hazardous fuel reduction projects authorized by the Healthy 
Forests Restoration Act of 2003 (HFRA), Public Law 108-148. Section 105 
of the act directs the Secretary of Agriculture to promulgate, within 
30 days of HFRA's enactment, interim final regulations to establish a 
predecisional administrative review process for hazardous fuel 
reduction projects authorized under the act. The Forest Service invites 
written comments on this interim final rule. As provided by HFRA, this 
interim final rule is effective upon publication in the Federal 
Register and will be in effect until the Secretary adopts a final rule.

DATES: This interim final rule is effective January 9, 2004. Comments 
on this interim final rule must be received in writing by April 8, 
2004.

ADDRESSES: Send written comments to USDA, Forest Service, Healthy 
Forests Restoration Act Objections, Content Analysis Team, PO Box 
22777, Salt Lake City, UT 84122; by electronic mail to 
[email protected]; or by fax to (801) 517-1014; or by the 
electronic process available at Federal eRulemaking portal at http://www.regulations.gov. If comments are sent by electronic mail or by fax, 
the public is requested not to send duplicate written comments via 
regular mail. Please confine written comments to issues pertinent to 
the interim final rule; explain the reasons for any recommended 
changes; and, where possible, reference the specific section or 
paragraph being addressed.
    All timely and properly submitted comments, including names and 
addresses when provided, are placed in the record and are available for 
public inspection and copying. The public may inspect comments received 
on this interim final rule at the Content Analysis Team Service Center 
offices in Salt Lake City, Utah between the hours of 8 a.m. to 4:30 
p.m. on business days. Those wishing to inspect comments should call 
ahead (801) 517-1020 to facilitate an appointment and entrance to the 
building.

FOR FURTHER INFORMATION CONTACT: Steve Segovia, Assistant Director, 
Appeals and Litigation at (202) 205-1066.

SUPPLEMENTARY INFORMATION: On December 3, 2003, President Bush signed 
into law the Healthy Forests Restoration Act of 2003 (HFRA) to reduce 
the threat of destructive wildfires while upholding environmental 
standards and encouraging early public input during planning processes. 
The legislation helps further the President's Healthy Forests 
Initiative pledge to care for America's forests and rangelands, reduce 
the risk of catastrophic fire to communities, help save the lives of 
firefighters and citizens, and protect threatened and endangered 
species.
    One of the provisions of the act, (sec. 105) requires that the 
Secretary of Agriculture (Secretary) issue an interim final rule within 
30 days of enactment to establish a predecisional administrative review 
process for hazardous fuel reduction projects authorized by the HFRA. 
This interim final satisfies this requirement to establish a 
predecisional administrative review process. Another provision of the 
act required the Secretary to provide a reasonable time for public 
comment. The Secretary is providing a 90-day comment period on the 
interim final rule. This 90-day provision satisfies the reasonable time 
requirement in the act.
    Prior to passage of the HFRA, public notice and comment for 
hazardous fuel reduction project proposals, and procedures for appeal 
of decisions implementing those projects, would have been conducted 
according to the procedures set out at 36 CFR part 215. This interim 
final rule amends part 215 to exempt hazardous fuel reduction projects 
authorized by the HFRA from the notice, comment, and appeal procedures 
set out at part 215 and establishes separate review and objection 
procedures specifically for hazardous fuel reduction projects, pursuant 
to HFRA at the new part 218, subpart A.

[[Page 1530]]

Section-by-Section Description of Interim Final Rule

Part 215--Notice, Comment, and Appeal Procedures for National Forest 
System Projects and Activities

Section 215.3--Proposed Actions Subject to Legal Notice and Opportunity 
To Comment
    Paragraphs (a) and (b) are amended to clarify that the notice and 
comment provisions of part 215 do not apply to proposed hazardous fuel 
reduction projects conducted pursuant to the HFRA.
Section 215.4--Actions Not Subject to Legal Notice and Opportunity To 
Comment
    Paragraph (f) is added to identify that proposed hazardous fuel 
reduction projects authorized by the HFRA are not subject to the notice 
and comment provisions of part 215.
Section 215.12--Decisions and Actions Not Subject to Appeal
    Paragraph (i) is added to clarify that proposed hazardous fuel 
reduction projects conducted under the provisions of the HFRA are not 
subject to appeal procedures in part 215 and that they are subject to 
the administrative review process found in part 218, subpart A.

Part 218--Predecisional Administrative Review

Subpart A--Predecisional Administrative Review for Proposed Hazardous 
Fuel Reduction Projects Authorized by the Healthy Forests Restoration 
Act of 2003

Section 218.1--Purpose and Scope
    This section establishes a predecisional administrative review 
(hereinafter ``objection'') process for those proposed hazardous fuel 
reduction projects authorized by the HFRA.
Section 218.2--Definitions
    This section defines some of the commonly used terms and phrases in 
the interim final rule.
Section 218.3--Authorized Hazardous Fuel Reduction Projects Subject to 
the Objection Process
    This section describes projects subject to the objection process.
Section 218.4--Legal Notice of Objection Process for Proposed 
Authorized Hazardous Fuel Reduction Projects
    This section describes the method to be used when giving notice 
that an environmental assessment or environmental impact statement for 
a proposed authorized hazardous fuel reduction project is available for 
administrative review and how the proposed authorized hazardous fuel 
reduction project must be described in this notice.
    Paragraph (a) requires that the Responsible Official must mail the 
final environmental impact statement or the environmental assessment to 
those who have submitted specific written comments related to the 
proposed authorized hazardous fuel reduction project during the 
opportunity for public comment provided during preparation of the 
environmental assessment or environmental impact statement.
    Paragraph (b) states that the Responsible Official must announce 
through notice in a previously designated newspaper of record when an 
environmental assessment or environmental impact statement is available 
for administrative review, except for proposals of the Chief where 
Federal Register publication is provided in addition to publication in 
the newspaper of record for the unit where the proposed hazardous fuel 
reduction project is undertaken. The legal notice begins the 30-day 
objection-filing period for a proposed authorized hazardous fuel 
reduction project.
    Paragraph (b) further outlines the format and content of the legal 
notice, including a statement that incorporation of documents by 
reference is not allowed. This provision ensures that the contents of 
an objection, including all attachments, are readily available to the 
Reviewing Officer for timely completion of the objection process. 
Similarly, objectors cannot meet the requirements of this process by 
attempting to incorporate substantive materials and arguments from 
other objectors. The Federal courts have taken a similar view of such 
procedural maneuvers; see Swanson v. U.S. Forest Service, 87 F.3d 339 
(9th Cir. 1996).
    Paragraph (c) requires annual publication in the Federal Register 
of the newspapers to be used for giving legal notice of proposed 
authorized hazardous fuel reduction projects subject to this rule. The 
annual publication of the newspapers to be used for giving legal notice 
of proposed authorized hazardous fuel reduction projects subject to 
this rule may occur in tandem with the annual publication requirement 
found in part 215.
Section 218.5--Reviewing Officer
    This section provides the Reviewing Officer with the authority to 
make all procedural determinations not specifically explained in this 
subpart, including those procedures necessary to ensure compatibility, 
to the extent practicable, with the administrative review processes of 
other Federal agencies when undertaking a joint proposed authorized 
hazardous fuel reduction project. The section also provides that such 
procedural determinations are not subject to further review.
Section 218.6--Who May File an Objection
    This section of the rule identifies the qualifying requirements for 
who may file an objection under this subpart.
    Paragraph (a) provides that those individuals and organizations who 
have submitted specific written comments related to the proposed 
authorized hazardous fuel reduction project during the opportunity for 
public comment provided during preparation of an environmental 
assessment or environmental impact statement for the proposed 
authorized hazardous fuel reduction project, as characterized in 
section 104(g) of the HFRA are eligible to file an objection. Paragraph 
(a) further states that for a proposed authorized hazardous fuel 
reduction project described in an environmental impact statement, the 
requirements of section 104(g) would be satisfied during the formal 
comment process for draft environmental impact statements set forth in 
40 CFR 1506.10. For proposed authorized hazardous fuel reduction 
projects described in an environmental assessment, the requirements at 
section 104(g) will be satisfied by submission of specific written 
comment related to the proposed authorized hazardous fuel reduction 
project during scoping and other public involvement opportunities as 
environmental assessments are not circulated for public comment in 
draft form.
    Paragraph (b) states that when an organization submits comments, 
eligibility is conferred on that organization only, not on individual 
members of that organization. The Department believes an organization 
is its own entity for purposes of submitting comments and that it is 
appropriate to accord an organization eligibility to file objections as 
an organization when it submits comments. However, the Department does 
not believe it is appropriate to allow individual members in that 
organization eligibility to file individual objections by virtue of 
membership in an organization that submitted comments. Nothing in this 
section prohibits an individual member of an organization

[[Page 1531]]

from submitting comments on his or her own behalf.
    Paragraph (c) clarifies that if an objection is submitted on behalf 
of a number of named individuals or organizations, each individual or 
organization listed must meet the eligibility requirement of having 
submitted comments during scoping or the other opportunity to comment 
as prescribed by HFRA.
    Paragraph (d) states that Federal agencies are not allowed to file 
an objection. Other avenues are available to Federal agencies for 
working through concerns regarding a proposed authorized hazardous fuel 
reduction project. It is expected that the various Federal agencies 
will work cooperatively during project development.
    Paragraph (e) allows Federal employees to file objections as 
individuals in a manner consistent with Federal conflict of interest 
requirements.
Section 218.7--Filing an Objection
    This section provides information on how to file an objection.
    Paragraph (a) provides for an objection to be filed with the 
Reviewing Officer in writing.
    Paragraph (b) describes the objector's responsibility.
    Paragraph (c) provides that incorporation of documents by reference 
shall not be allowed. The reasons for not permitting documents by 
reference are addressed in the discussion in preceding section 
218.4(b).
    Paragraph (d) provides a detailed list of information that must be 
included in an objection. The list is comparable to the Department's 
requirements in appeal regulations for land and resource management 
plans (part 217) and projects implementing land and resource management 
plans (part 215).
Section 218.8--Objections Set Aside From Review
    This section sets out the conditions under which objections shall 
not be reviewed.
    Paragraph (a) specifies when the Reviewing Officer must set aside 
an objection without review or response on the concerns raised, 
including when an objection is not filed within the objection period; 
when the proposed project is not subject to the provisions of the HFRA 
and, therefore, is not subject to the objections process; when the 
objector did not submit specific written comments related to the 
proposed authorized hazardous fuel reduction project during the 
opportunity for public comment provided during preparation of an 
environmental assessment or environmental impact statement for the 
proposed authorized hazardous fuel reduction project; and when there is 
insufficient information to review and respond.
    Paragraph (b) states that when an objection is set aside and not 
processed, the Reviewing Officer shall give written notice to the 
objector and Responsible Official.
Section 218.9--Objection Time Periods and Process
    This section describes the various time periods involved in the 
objection process. One of the purposes of the HFRA is to reduce the 
threat of destructive wildfires while upholding environmental standards 
and encouraging early public input during review and planning 
processes. The time periods established in this section are predicated 
on that statutory purpose.
    Paragraph (a) specifies that the objection-filing period is 30 days 
following publication of the legal notice.
    Paragraph (b) describes how time periods are computed.
    Paragraph (c) describes how evidence of timely filing is 
determined.
    Paragraph (d) states that time extensions are not permitted.
    Paragraph (e) states that a written response to the objection shall 
be issued within 30 days following the end of the objection-filing 
period.
Section 218.10--Resolution of Objections
    This section describes the objection resolution process.
    Paragraph (a) allows for either the Reviewing Officer or the 
objector to request a meeting to discuss the objection and attempt 
resolution.
    Paragraph (b) provides for a written response to the objection. The 
Reviewing Officer may issue a single response to multiple objections of 
the same proposed authorized hazardous fuel reduction project. 
Paragraph (b) also states that there is no higher level review of the 
Reviewing Officer's written response to the objection.
Section 218.11--Timing of Authorized Hazardous Fuel Reduction Project 
Decision
    This section describes when a Responsible Official may make a final 
decision regarding a proposed authorized hazardous fuel reduction 
project pursuant to the HFRA.
    Paragraph (a) allows decisions to be made on proposed authorized 
hazardous fuel reduction projects when the objection period has ended 
and when responses have been made to all objections.
    To provide reasonable assurance that objections are received before 
decisionmaking, paragraph (b) states that a decision can be made on a 
proposed authorized hazardous fuel reduction project on the 5th 
business day following the close of the filing period when no timely 
objections are filed. For all environmental impact statements, there 
must be a minimum of 30 days between notice of the final environmental 
impact statement and issuance of a Record of Decision.
Section 218.12--Secretary's Authority
    Paragraph (a) details the Secretary's authority.
    Paragraph (b) exempts authorized hazardous fuel reduction projects 
proposed by the Secretary or Under Secretary of Agriculture from the 
provisions of this rule. Nothing in the HFRA alters the Secretary's 
long-established authority to make decisions affecting the Forest 
Service. The Department's position has always been that Secretarial 
decisions are not subject to an administrative review or appeal process 
under any of the Forest Service's administrative review systems and 
there is no indication that Congress intended to make such a change 
through the HFRA.
Section 218.13--Judicial Proceedings
    Section 218.13 reflects the Department's interpretation and 
implementation of section 105 of the HRFA. Statutory and judicial 
exhaustion requirements ensure that an agency is able to develop full 
factual records, to apply technical and managerial expertise to 
identified problems, to exercise its judgment and discretion, and to 
correct its own mistakes. Exhaustion requirements are credited with 
promoting accuracy, efficiency, public participation, agency autonomy, 
and judicial economy.
    Generally, statutory exhaustion requirements are jurisdictional and 
cannot be waived by courts. The HFRA does permit plaintiffs to 
undertake the burden of demonstrating that a ``futility or inadequacy'' 
exception should be invoked as to a specific plaintiff or claim. The 
Department understands these provisions are to be read together, 
narrowly construed, and invoked only in rare instances such as where 
information becomes available only after the conclusion of the 
administrative process.
    Congress stated that National Environmental Policy Act (NEPA) 
documents are to be in complete or final form when made available for 
objection.

[[Page 1532]]

The objection process is, therefore, not a second comment period on a 
draft document, but rather a final opportunity to ensure full 
understanding of public concerns shortly preceding a decision.
    Congress's view on the purpose or intent for the objection process 
likewise narrows the operation of the futility exemption to those 
situations where information, which dramatically changes the picture 
with regard to environmental effects, or the need for the project, 
comes to light after the NEPA document has been completed.
    A contrary reading would be inconsistent with Congress's 
expectation that the exception provisions are not applicable to 
information which has not been brought to the attention of the agency. 
The objection process protects against the possibility of a ``futile'' 
appeal due to delay because final decisions on authorized hazardous 
fuel reduction projects cannot be issued prior to conclusion of the 
objection process and any issue relevant to the proposed authorized 
hazardous fuel reduction project can be assessed during the objection 
process. Similarly, predecisional review of each proposed authorized 
hazardous fuel reduction project avoids the criticism sometimes leveled 
against postdecisional appeals that reviewers are unfairly disposed to 
a particular or predetermined outcome. Instances of futility or 
inadequacy should be rare indeed as the administrative review is 
conducted through a process Congress created specifically for this 
class of actions and occurs prior to the agency's final decision. 
Moreover, the participatory requirements for these high-priority 
projects are predicated on Congress's determination, expressed through 
the statutory scheme, that predecisional collaboration is vital to 
avoiding potential disputes and that the land managers are in the 
optimal position to identify and correct any errors and to fine-tune 
the design of proposed authorized hazardous fuel reduction projects if 
they are made aware of concerns before final decisions are made. 
Sweeping exceptions to the participatory requirements are at odds with 
Congress's intent.
Section 218.14--Information Collection Requirements
    This section explains that the rule contains information collection 
requirements as defined in 5 CFR part 1320 by specifying the 
information that objectors must supply in an objection. The Office of 
Management and Budget (OMB) Control Number for this information 
collection will be included in the final rule.
Section 218.15--Applicability and Effective Date
    This section sets out the effective date of this interim final rule 
and provides that all proposed hazardous fuel reduction projects 
subject to the provisions of the HFRA, for which scoping begins on or 
after the effective date of this interim final rule, are subject to its 
provisions.

Good Cause Statement

    The Healthy Forests Restoration Act of 2003 (HFRA), signed by 
President Bush on December 3, 2003, directs that within 30 days of 
enactment the Secretary of Agriculture promulgate a special 
administrative review process to serve as the sole means by which the 
public can seek administrative review regarding proposed authorized 
hazardous fuel reduction projects. The HFRA directs that the interim 
final rule shall be effective upon publication in the Federal Register. 
Circulation of the interim final rule for public comment prior to the 
effective date is impractical given the statutory 30-day deadline; 
furthermore, a 90-day comment period on the interim final rule is 
provided, and comments will be considered for the subsequent 
development of the final rule.

Regulatory Certifications

Regulatory Impact

    This interim final rule has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review. It has been 
determined that this is not a significant rule. This interim final rule 
will not have an annual effect of $100 million or more on the economy 
nor adversely affect productivity, competition, jobs, the environment, 
public health or safety, nor State or local governments. This interim 
final rule will not interfere with an action taken or planned by 
another agency nor raise new legal or policy issues. Finally, this 
action will not alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients of such programs.
    Moreover, this interim final rule has been considered in light of 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been 
determined that this action will not have a significant economic impact 
on a substantial number of small entities as defined by that act. 
Therefore, a regulatory flexibility analysis is not required for this 
interim final rule.

Environmental Impacts

    This interim final rule establishes a predecisional administrative 
review process for authorized hazardous fuel reduction projects on 
National Forest System lands pursuant to section 105 of the Healthy 
Forests Restoration Act of 2003. Section 31.1b of Forest Service 
Handbook 1909.15 (57 FR 43168; September 18, 1992) excludes from 
documentation in an environmental assessment or impact statement 
``rules, regulations, or policies to establish Service-wide 
administrative procedures, program processes, or instruction.'' This 
interim final rule clearly falls within this category of actions and no 
extraordinary circumstances exist which would require preparation of an 
environmental assessment or an environmental impact statement.

Energy Effects

    This interim final rule has been reviewed under Executive Order 
13211 of May 18, 2001, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use.'' It has been 
determined that this proposed rule does not constitute a significant 
energy action as defined in the Executive order.

Controlling Paperwork Burdens on the Public

    This interim final rule represents a new information requirement as 
defined in 5 CFR Part 1320, Controlling Paperwork Burdens on the 
Public. In accordance with those rules and the Paperwork Reduction Act 
of 1995, as amended (44 U.S.C. 3501, et seq.), the Forest Service has 
requested emergency approval from the Office of Management and Budget 
(OMB) for this new information collection. The information to be 
collected from those who choose to participate in the predecisional 
administrative review process for hazardous fuel reduction projects 
authorized under the Healthy Forests Restoration Act of 2003 (HFRA) is 
the minimum needed for the Reviewing Officer to make an informed 
decision on an objection filed under the HFRA.

Description of Information Collection

    Title: Predecisional Administrative Review Process for Hazardous 
Fuel Reduction Projects Authorized Under the Healthy Forests 
Restoration Act of 2003.
    OMB Number: 0596-0172.
    Expiration Date of Approval: June 30, 2004.
    Type of Request: The following collection requirements are new and 
have not previously received approval

[[Page 1533]]

by the Office of Management and Budget.
    Abstract: The information collected is needed for a citizen or 
organization to explain the nature of the objection being made to a 
proposed authorized hazardous fuel reduction project undertaken under 
the authority of the Healthy Forests Restoration Act of 2003, and the 
reason(s) why the individual or organization objects. Specifically, an 
objector must provide:
    1. A name, mailing address, and if possible, telephone number;
    2. Signature or other verification of authorship upon request;
    3. The name of the proposed authorized hazardous fuel reduction 
project, the name and title of the Responsible Official, the National 
Forest(s) and/or Ranger District(s) on which the proposed authorized 
hazardous fuel reduction project will be implemented; and
    4. Any specific changes that the objector seeks and the rationale 
for those changes.
    Estimate of Burden: The public reporting burden to provide 
information when filing an objection to a proposed authorized hazardous 
fuel reduction project is estimated to average 8 hours per response.
    Respondents: Individuals, businesses, not-for-profit institutions, 
State, local or Tribal Government.
    Estimated Number of Respondents: 121.
    Estimated Number of Responses per Respondent: 1 response per year.
    Estimated Total Annual Burden on Respondents: 968 hours.
    Comments are Invited on: (a) Whether the collection of information 
is necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility; (b) the 
accuracy of this agency's estimate of the burden of the collection of 
information, including the validity of the methodology and assumptions 
used; (c) ways to enhance the quality, utility, and clarity of the 
information to be collected; and (d) ways to minimize the burden of the 
collection of information on respondents, including the use of 
automated collection techniques or other forms of information 
technology.
    Use of Comments: All comments received in response to this 
information collection will be summarized and included in the request 
for final OMB approval. All comments, including names and addresses 
when provided will become a matter of public record.

Federalism

    The agency has considered this interim final rule under the 
requirements of Executive Order 13132, Federalism, and Executive Order 
12875, Government Partnerships. The agency has made a preliminary 
assessment that the interim final rule conforms with the federalism 
principles set out in these Executive orders; would not impose any 
compliance costs on the States; and would not have 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. Based on 
comments received on this interim final rule, the agency will consider 
if any additional consultation will be needed with State and local 
governments prior to adopting a final rule.

Consultation and Coordination With Indian Tribal Governments

    This interim final rule does not have tribal implications as 
defined in Executive Order 13175, Consultation and Coordination with 
Indian Tribal Governments, and, therefore, advance consultation with 
tribes is not required.

No Takings Implications

    This interim final rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630. It has been 
determined that the interim final rule does not pose the risk of a 
taking of private property.

Civil Justice Reform

    This interim final rule has been reviewed under Executive Order 
12988 on civil justice reform. After adoption of this interim final 
rule, (1) all State and local laws and regulations that conflict with 
this interim final rule or that impede its full implementation will be 
preempted; (2) no retroactive effect will be given to this interim 
final rule; and (3) it will not require administrative proceedings 
before parties may file suit in court challenging its provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the agency has assessed the effects of this interim final rule on 
State, local, and tribal governments and the private sector. This 
interim final rule does not compel the expenditure of $100 million or 
more by any State, local, or tribal governments or anyone in the 
private sector. Therefore, a statement under section 202 of the act is 
not required.

List of Subjects

36 CFR Part 215

    Administrative practice and procedure, National Forests.

36 CFR Part 218

    Administrative practice and procedure, National Forests.

0
Therefore, for the reasons set forth in the preamble, amend part 215 
and add subpart A to part 218 of title 36 of the Code of Federal 
Regulations to read as follows:

PART 215--NOTICE, COMMENT, AND APPEAL PROCEDURES FOR NATIONAL 
FOREST SYSTEM PROJECTS AND ACTIVITIES

0
1. Amend section 215.3 to revise paragraphs (a) and (b) to read as 
follows:


Sec.  215.3  Proposed actions subject to legal notice and opportunity 
to comment.

* * * * *
    (a) Proposed projects and activities implementing land and resource 
management plans (Sec.  215.2) for which an environmental assessment 
(EA) is prepared, except hazardous fuel reduction projects conducted 
under provisions of the Healthy Forests Restoration Act (HFRA), as set 
out at part 218, subpart A of this title.
    (b) Proposed projects and activities described in a draft 
environmental impact statement (DEIS) for which notice and comment 
procedures are governed by 40 CFR parts 1500 through 1508, except 
hazardous fuel reduction projects conducted under provisions of the 
HFRA, as set out at part 218, subpart A, of this title.
* * * * *

0
2. Amend section 215.4 to add paragraph (f) to read as follows:


Sec.  215.4  Actions not subject to legal notice and opportunity to 
comment.

* * * * *
    (f) Hazardous fuel reduction projects conducted under the 
provisions of section 105 of the HFRA, except as provided in part 218, 
subpart A, of this title.

0
3. Amend section 215.12 to add paragraph (i) to read as follows:


Sec.  215.12  Decisions and actions not subject to appeal.

* * * * *
    (i) Hazardous fuel reduction projects conducted under provisions of 
the HFRA, as set out at part 218, subpart A, of this title.

0
4. Add part 218, subpart A, to read as follows:

[[Page 1534]]

PART 218--PREDECISIONAL ADMINISTRATIVE REVIEW PROCESSES

Subpart A--Predecisional Administrative Review Process for 
Hazardous Fuel Reduction Projects Authorized by the Healthy Forests 
Restoration Act of 2003

Sec.
218.1 Purpose and scope.
218.2 Definitions.
218.3 Authorized hazardous fuel reduction projects subject to the 
objection process.
218.4 Legal notice of objection process for proposed authorized 
hazardous fuel reduction projects.
218.5 Reviewing officer.
218.6 Who may file an objection.
218.7 Filing an objection.
218.8 Objections set aside from review.
218.9 Objection time periods and process.
218.10 Resolution of objections.
218.11 Timing of authorized hazardous fuel reduction project 
decision.
218.12 Secretary's authority.
218.13 Judicial proceedings.
218.14 Information collection requirements.
218.15 Applicability and effective date.
Subpart B [Reserved]

    Authority: Pub. L. 108-148, 117 Stat 1887 (Healthy Forests 
Restoration Act of 2003).


Sec.  218.1  Purpose and scope.

    This subpart establishes a predecisional administrative review 
(hereinafter referred to as ``objection'') process for proposed 
authorized hazardous fuel reduction projects as defined in the Healthy 
Forests Restoration Act of 2003 (HFRA). The objection process is the 
sole means by which administrative review of a proposed authorized 
hazardous fuel reduction project on National Forest System land may be 
sought. This subpart identifies who may file objections to those 
proposed authorized hazardous fuel reduction projects, the 
responsibilities of the participants in an objection, and the 
procedures that apply for review of the objection.


Sec.  218.2  Definitions.

    Address--An individual's or organization's current physical mailing 
address. An e-mail address is not sufficient.
    Authorized hazardous fuel reduction project--A hazardous fuel 
reduction project authorized by the HFRA.
    Comments--Specific written comments related to a proposed 
authorized hazardous fuel reduction project pursuant to the HFRA.
    Decision Notice (DN)--A concise written record of a Responsible 
Official's decision based on an environmental assessment and a finding 
of no significant impact (FONSI) (40 CFR 1508.13; FSH 1909.15, Chapter 
40).
    Environmental Assessment (EA)--A public document that provides 
sufficient evidence and analysis for determining whether to prepare an 
environmental impact statement (EIS) or a finding of no significant 
impact, aids an agency's compliance with the National Environmental 
Policy Act (NEPA) when no EIS is necessary, and facilitates preparation 
of a statement when one is necessary (40 CFR 1508.9; FSH 1909.15, 
Chapter 40).
    Environmental Impact Statement (EIS)--A detailed written statement 
as required by section 102(2)(C) of the National Environmental Policy 
Act of 1969 (40 CFR 1508.11; FSH 1909.15, Chapter 20).
    Forest Service line officer--A Forest Service official who serves 
in a direct line of command from the Chief and who has the delegated 
authority to make and execute decisions approving hazardous fuel 
reduction projects subject to this subpart.
    Lead objector--For objections submitted with multiple individuals 
and/or organizations listed, the individual or organization identified 
to represent all other objectors for the purposes of communication, 
written or otherwise, regarding the objection.
    Name--The first and last name of an individual or the name of an 
organization. An electronic username is insufficient for identification 
of an individual or organization.
    National Forest System land--All lands, water, or interests therein 
administered by the Forest Service (Sec.  251.51).
    Newspaper(s) of record--Those principal newspapers of general 
circulation annually identified in a list and published in the Federal 
Register by each Regional Forester to be used for publishing notices of 
projects and activities implementing land and resource management 
plans.
    Objection--The written document filed with a Reviewing Officer by 
an individual or organization seeking predecisional administrative 
review of a proposed authorized hazardous fuel reduction project as 
defined in the Healthy Forests Restoration Act of 2003.
    Objection period--The 30-calendar-day period following publication 
of the legal notice in the newspaper of record of an environmental 
assessment or final environmental impact statement for a proposed 
authorized hazardous fuel reduction project during which an objection 
may be filed with the Reviewing Officer.
    Objection process--Those procedures established for predecisional 
administrative review of proposed authorized hazardous fuel reduction 
projects subject to the Healthy Forests Restoration Act of 2003.
    Objector--An individual or organization filing an objection who 
submitted comments specific to the proposed authorized hazardous fuel 
reduction project during scoping or other opportunity for public 
comment as described in the Healthy Forests Restoration Act of 2003. 
The use of the term ``objector'' applies to all persons that meet 
eligibility requirements associated with the filed objection.
    Record of Decision (ROD)--A document signed by a Responsible 
Official recording a decision that was preceded by preparation of an 
environmental impact statement (40 CFR 1505.2; FSH 1909.15, Chapter 
20).
    Responsible Official--The Forest Service employee who has the 
delegated authority to make and implement a decision approving proposed 
authorized hazardous fuel reduction projects subject to this subpart.
    Reviewing Officer--The USDA or Forest Service official having the 
delegated authority and responsibility to review an objection filed 
under this subpart. The Reviewing Officer is the next higher level 
supervisor of the Responsible Official.


Sec.  218.3  Authorized hazardous fuel reduction projects subject to 
the objection process.

    Only authorized hazardous fuel reduction projects as defined by the 
Healthy Forests Restoration Act of 2003, section 101(2), occurring on 
National Forest System lands that have been analyzed in an 
environmental assessment or environmental impact statement are subject 
to this subpart. Authorized hazardous fuel reduction projects processed 
under the provisions of the HFRA are not subject to the notice, 
comment, and appeal provisions set forth in part 215 of this chapter.


Sec.  218.4  Legal notice of objection process for proposed authorized 
hazardous fuel reduction projects.

    (a) The Responsible Official shall promptly mail the final 
environmental impact statement (FEIS) or the environmental assessment 
(EA) to those who have previously requested to be included on the 
proposed authorized hazardous fuel reduction project mailing list or 
are known to have submitted specific written comments related to the 
proposed authorized hazardous fuel reduction project during the 
opportunity for public comment provided during preparation of the 
environmental assessment or environmental impact statement.
    (b) Upon completion and mailing of the FEIS or EA, legal notice of 
the

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opportunity to object to a proposed authorized hazardous fuel reduction 
project shall be published in the applicable newspaper of record 
identified in paragraph (c) of this section for each National Forest 
System unit. When the Chief is the Responsible Official, notice shall 
also be published in the Federal Register. The legal notice shall:
    (1) Include the name of the proposed authorized hazardous fuel 
reduction project and a concise description of the preferred 
alternative, name and title of the Responsible Official, name of the 
Forest and/or District on which the proposed authorized hazardous fuel 
reduction project will occur, instructions for obtaining a copy of the 
FEIS or EA, and instructions on how to obtain additional information on 
the proposed authorized hazardous fuel reduction project.
    (2) State that the proposed authorized hazardous fuel reduction 
project is subject to the objection process pursuant to 36 CFR part 
218, subpart A, and include the following:
    (i) Name and address of the Reviewing Officer with whom an 
objection is to be filed. The notice shall specify a street, postal, 
fax, and e-mail address, the acceptable format(s) for objections filed 
electronically, and the Reviewing Officer's office business hours for 
those filing hand-delivered objections.
    (ii) A statement that objections will be accepted only from those 
who have previously submitted written comments specific to the proposed 
authorized hazardous fuel reduction project during scoping or other 
opportunity for public comment (Sec.  218.6(a)).
    (iii) A statement that the publication date of the legal notice in 
the newspaper of record is the exclusive means for calculating the time 
to file an objection (Sec.  218.9(a)) and that those wishing to object 
should not rely upon dates or timeframe information provided by any 
other source. A specific date shall not be included in the legal 
notice.
    (iv) A statement that an objection, including attachments, must be 
filed (regular mail, fax, e-mail, hand-delivery, express delivery, or 
messenger service) with the appropriate Reviewing Officer (Sec.  218.7) 
within 30 days of the date of publication of the legal notice for the 
objection process. Incorporation of documents by reference shall not be 
allowed.
    (v) A statement describing the minimum content requirements of an 
objection (Sec.  218.7(b)-(c)).
    (vi) A statement that the proposed authorized hazardous fuel 
reduction project is not subject to the notice, comment, and appeal 
procedures found at part 215 of this chapter (Sec.  218.3).
    (c) Publication. Through notice published annually in the Federal 
Register, each Regional Forester shall advise the public of the 
newspaper(s) of record utilized for publishing legal notice required by 
this subpart.


Sec.  218.5  Reviewing officer.

    The Reviewing Officer determines procedures to be used for 
processing objections when the procedures are not specifically 
described in this subpart, including such procedures as needed to be 
compatible to the extent practicable, with the administrative review 
processes of other Federal agencies, for authorized hazardous fuel 
reduction projects proposed jointly with other agencies. Such 
determinations are not subject to further administrative review.


Sec.  218.6  Who may file an objection.

    (a) Individuals and organizations who have submitted specific 
written comments related to the proposed authorized hazardous fuel 
reduction project during the opportunity for public comment provided 
during preparation of an environmental assessment or environmental 
impact statement for the proposed authorized hazardous fuel reduction 
project as characterized in section 104(g) of the HFRA may file an 
objection. For proposed authorized hazardous fuel reduction projects 
described in a draft environmental impact statement, such opportunity 
for public comment will be fulfilled by the comment procedures set 
forth in 40 CFR 1506.10. For proposed authorized hazardous fuel 
reduction projects described in an environmental assessment, such 
opportunity for public comment will be fulfilled during scoping or 
other public involvement opportunities as environmental assessments are 
not circulated for public comment in draft form.
    (b) Comments received from an authorized representative(s) of an 
organization are considered those of the organization only. Individual 
members of that organization do not meet objection eligibility 
requirements solely on the basis of membership in an organization. A 
member or an individual must submit comments independently in order to 
be eligible to file an objection in an individual capacity.
    (c) When an objection lists multiple individuals or organizations, 
each individual or organization shall meet the requirements of 
paragraph (a) of this section. Individuals or organizations listed on 
an objection that do not meet eligibility requirements shall not be 
considered objectors. Objections from individuals or organizations that 
do not meet the requirements of paragraph (a) shall not be accepted. 
This shall be documented in the objection record.
    (d) Federal agencies may not file objections.
    (e) Federal employees who otherwise meet the requirements of this 
subpart for filing objections in a non-official capacity, shall comply 
with Federal conflict of interest statutes at 18 U.S.C. 202-209 and 
with employee ethics requirements at 5 CFR part 2635. Specifically, 
employees shall not be on official duty nor use Government property or 
equipment in the preparation or filing of an objection. Further, 
employees shall not incorporate information unavailable to the public, 
such as Federal agency documents that are exempt from disclosure under 
the Freedom of Information Act (5 U.S.C. 552 (b)).


Sec.  218.7  Filing an objection.

    (a) Objections must be filed with the Reviewing Officer in writing. 
All objections shall be open to public inspection during the objection 
process.
    (b) It is the objector's responsibility to provide sufficient 
narrative description of those aspects of the proposed authorized 
hazardous fuel reduction project addressed by the objection, specific 
issues related to the proposed authorized hazardous fuel reduction 
project, and suggested remedies which would resolve the objection.
    (c) Incorporation of documents by reference shall not be allowed.
    (d) At a minimum, an objection must include the following:
    (1) Objector's name and address (Sec.  218.2), with a telephone 
number, if available;
    (2) Signature or other verification of authorship upon request (a 
scanned signature for electronic mail may be filed with the objection);
    (3) When multiple names are listed on an objection, identification 
of the lead objector (Sec.  218.2). Verification of the identity of the 
lead objector shall be provided upon request;
    (4) The name of the proposed authorized hazardous fuel reduction 
project, the name and title of the Responsible Official, and the 
name(s) of the National Forest(s) and/or Ranger District(s) on which 
the proposed authorized hazardous fuel reduction project will be 
implemented.


Sec.  218.8  Objections set aside from review.

    (a) The Reviewing Officer shall set aside and not review an 
objection when one or more of the following applies:
    (1) Objections are not filed in a timely manner (Sec.  
218.4(b)(2)(iv), Sec.  218.9(c)).

[[Page 1536]]

    (2) The proposed project is not subject to the objection procedures 
of this subpart (Sec.  218.3).
    (3) The individual or organization did not submit written comments 
during scoping or other opportunity for public comment (Sec.  
218.6(a)).
    (4) The objection does not provide sufficient information as 
required by Sec.  218.7(b) through (d) for the Reviewing Officer to 
review.
    (5) The objector withdraws the objection.
    (6) An objector's identity is not provided or cannot be determined 
from the signature (written or electronically scanned) and a reasonable 
means of contact is not provided (Sec.  218.7(c)(1)).
    (7) The objection is illegible for any reason, including 
submissions in an electronic format different from that specified in 
the legal notice.
    (b) The Reviewing Officer shall give written notice to the objector 
and the Responsible Official when an objection is set aside from review 
and shall state the reasons for not reviewing the objection. If the 
objection is set aside from review for reasons of illegibility or lack 
of a means of contact, the reasons shall be documented in the project 
record.


Sec.  218.9  Objection time periods and process.

    (a) Time to file an objection. Written objections, including any 
attachments, must be filed with the Reviewing Officer within 30 days 
following the publication date of the legal notice of the EA or FEIS in 
the newspaper of record (Sec.  218.4(b)). It is the responsibility of 
objectors to ensure that their objection is received in a timely 
manner.
    (b) Computation of time periods. (1) All time periods are computed 
using calendar days, including Saturdays, Sundays, and Federal 
holidays. However, when the time period expires on a Saturday, Sunday, 
or Federal holiday, the time is extended to the end of the next Federal 
working day as stated in the legal notice or to the end of the calendar 
day (11:59 p.m.) for objections filed by electronic means such as e-
mail or facsimile machine.
    (2) The day after publication of the legal notice for this subpart 
of the EA or FEIS in the newspaper of record (Sec.  218.4(b)) is the 
first day of the objection-filing period.
    (3) The publication date of the legal notice of the EA or FEIS in 
the newspaper of record is the exclusive means for calculating the time 
to file an objection. Objectors may not rely on dates or timeframe 
information provided by any other source.
    (c) Evidence of timely filing. Timeliness shall be determined by:
    (1) The date of the postmark, e-mail, fax, or other means of filing 
(for example, express delivery service) of an objection and any 
attachment;
    (2) The time and date imprint at the correct Reviewing Officer's 
office on a hand-delivered objection and any attachments; or
    (3) When an objection is electronically mailed, the objector should 
normally receive an automated electronic acknowledgment from the agency 
as confirmation of receipt. If the objector does not receive an 
automated acknowledgment of the receipt of the objection, it is the 
objector's responsibility to ensure timely receipt by other means.
    (d) Extensions. Time extensions are not permitted.
    (e) Other timeframes. The Reviewing Officer shall issue a written 
response to the objector(s) concerning their objection(s) within 30 
days following the end of the objection-filing period.


Sec.  218.10  Resolution of objections.

    (a) Meetings. Prior to the issuance of the Reviewing Officer's 
written response, either the Reviewing Officer or the objector may 
request to meet to discuss issues raised in the objection and potential 
resolution. The Reviewing Officer has the discretion to determine 
whether or not adequate time remains in the review period to make a 
meeting with the objector practical. All meetings are open to the 
public.
    (b) Response to objections. (1) A written response shall set forth 
the reasons for the response, but need not be a point-by-point review, 
and may contain instructions to the Responsible Official, if necessary. 
In cases involving more than one objection to a proposed authorized 
hazardous fuel reduction project, the Reviewing Officer may consolidate 
objections and issue one or more responses.
    (2) There shall be no further review from any other Forest Service 
or USDA official of the Reviewing Officer's written response to an 
objection.


Sec.  218.11  Timing of authorized hazardous fuel reduction project 
decision.

    (a) The Responsible Official may not issue a Record of Decision 
(ROD) or Decision Notice (DN) concerning an authorized hazardous fuel 
reduction project subject to the provisions of this subpart until the 
Reviewing Officer has responded to all pending objections.
    (b) When no objection is filed within the 30-day time period, the 
Reviewing Officer shall notify the Responsible Official, and approval 
of the authorized hazardous fuel reduction project in a Record of 
Decision or Decision Notice may occur on, but not before, the fifth 
business day following the end of the objection-filing period.


Sec.  218.12  Secretary's authority.

    (a) Nothing in this section shall restrict the Secretary of 
Agriculture from exercising any statutory authority regarding the 
protection, management, or administration of National Forest System 
lands.
    (b) Authorized hazardous fuel reduction projects proposed by the 
Secretary of Agriculture or the Under Secretary, Natural Resources and 
Environment are not subject to the procedures set forth in this 
subpart. A decision by the Secretary or Under Secretary constitutes the 
final administrative determination of the Department of Agriculture.


Sec.  218.13  Judicial proceedings.

    The objection process set forth in this subpart fully implements 
Congress' design for a predecisional administrative review process for 
proposed hazardous fuel reduction projects authorized by the HFRA. 
These procedures present a full and fair opportunity for concerns to be 
raised and considered on a project-by-project basis. Individuals and 
groups must structure their participation so as to alert the local 
agency officials making particular land management decisions of their 
positions and contentions. Further, any filing for Federal judicial 
review of an authorized hazardous fuel reduction project is premature 
and inappropriate unless the plaintiff has submitted specific written 
comments relating to the proposed action during scoping or other 
opportunity for public comment as prescribed by the HFRA, and the 
plaintiff has challenged the authorized hazardous fuel reduction 
project by exhausting the administrative review process set out in this 
subpart. Further, judicial review of hazardous fuel reduction projects 
that are subject to these procedures is strictly limited to those 
issues raised by the plaintiff's submission during the objection 
process, except in exceptional circumstances such as where significant 
new information bearing on a specific claim only becomes available 
after conclusion of the administrative review.


Sec.  218.14  Information collection requirements.

    The rules of this subpart specify the information that objectors 
must provide in an objection to a proposed authorized hazardous fuel 
reduction project as defined in the HFRA (Sec.  218.7). As such,

[[Page 1537]]

these rules contain information collection requirements as defined in 5 
CFR part 1320. These information requirements are assigned OMB Control 
Number 0596-0172.


Sec.  218.15  Applicability and effective date.

    The provisions of this subpart are effective as of January 9, 2004 
and apply to all proposed authorized hazardous fuel reduction projects 
conducted under the provisions of the HFRA for which scoping begins on 
or after January 9, 2004.

Subpart B--[Reserved]

    Dated: January 5, 2004.
David P. Tenny,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 04-473 Filed 1-8-04; 8:45 am]
BILLING CODE 3410-11-P