[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
[[Page 1535]]
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