[Federal Register Volume 70, Number 18 (Friday, January 28, 2005)]
[Proposed Rules]
[Pages 4061-4074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1550]
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DEPARTMENT OF DEFENSE
32 CFR Part 202
Restoration Advisory Boards (RABs)
AGENCY: Department of Defense, Office of the Deputy Under Secretary of
Defense (Installations and Environment), DoD.
ACTION: Proposed rule.
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SUMMARY: The Department of Defense (DoD) requests public comment on
these proposed regulations regarding the scope, characteristics,
composition, funding, establishment, operation, adjournment, and
dissolution of Restoration Advisory Boards (RABs). DoD has proposed
these regulations in response to 10 U.S.C. 2705(d)(2)(A), which
requires the Secretary of Defense to prescribe regulations regarding
RABs.
The propose of the RAB is to facilitate public participation in DoD
environmental restoration activities and active and closing DoD
installations and formerly used defense sites where local communities
express interest in such activities. The proposed regulations are based
on DoD's current policies for
[[Page 4062]]
reestablishing and operating RABs, as well as DoD's experience over the
past ten years in using RABs.
DATES: Comments on this proposed rule must be submitted on or before
March 29, 2005.
ADDRESSES: Comments on this proposal should be sent to the following
address: RAB Rule, P.O. Box 5413, McLean, VA 22103-5413.
The public must send the original, and (whenever possible) a 3.5-
inch computer disk containing comments in a common word processing
format such as Microsoft Word. Public comments will also be collected
via the Defense Environmental Network and Information eXchange (DENIX),
located at the following Web site: https://www.denix.osd.mil/rabruleTBD.
FOR FURTHER INFORMATION CONTACT: Ms. Patricia Ferrebee, Office of the
Deputy Under Secretary of Defense (Environmental Management), at (703)
695-6107.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Authority
II. Background
III. Summary of the Proposed Rule
A. General Requirements
B. Operating Requirements
C. Administrative Support, Funding, and Reporting Requirements
IV. Section-by-Section Analysis of the Proposed Rule
A. General Requirements
1. Purpose, Scope, Definitions, and Applicability
a. Purpose
b. Purpose and Scope of Responsibilities of RABs
c. Definitions
d. Other Public Involvement Activities
e. Applicability of Regulations to Existing RABs
f. Guidance
2. Criteria for Establishment
a. Determining if Sufficient Interest Warrants Establishing a
RAB
b. Responsibility for Forming and Operating a RAB
c. Converting Existing Technical Review Committees (TRCs) to RAB
3. Notification of Formation of a RAB
a. Public Notice and Outreach
b. RAB Information Meeting
4. Composition of a RAB
a. Membership
b. Government Representation
c. Community Representation
d. Chairmanship
e. Compensation for Community Members of the RAB
f. Roles and Responsibilities of Members
B. Operating Requirements
1. Creating a Mission Statement
2. Selecting Co-Chairs
3. Developing Operating Procedures
4. Training RAB Members
5. Conducting RAB Meetings
a. Public Participation
b. Nature of Discussions
c. Meeting Minutes
6. RAB Adjournment and Dissolution
a. RAB Adjournment
b. RAB Dissolution
c. Reestablishing an Adjourned or Dissolved RAB
d. Public Comment
7. Documenting RAB Activities
C. Administrative Support, Funding, and Reporting Requirements
1. Administrative Support and Eligible Expenses
a. Administrative Support
b. Eligible Administrative Expenses
c. Funding
2. Technical Assistance for Public Participation (TAPP)
3. Documenting and Reporting Activities and Expenses
V. Regulatory Analysis
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
VI. Unfunded Mandates
I. Authority
These regulations are proposed under the authority of section 2705
of title 10, United States Code (U.S.C.).
II. Background
The Defense Environmental Restoration Program (DERP) was
established in 1986 to ``carry out a program of environmental
restoration of facilities under the jurisdiction of the Secretary.''
Goals of the program include: ``(1) Identification, investigation,
research and development, and cleanup of contamination from hazardous
substances, and pollutants and contaminants. (2) Correction of other
environmental damage (such as detection and disposal of unexploded
ordnance) which creates an imminent and substantial endangerment to the
public health or welfare or to the environment. (3) Demolition and
removal of unsafe buildings and structures, including buildings and
structures of the Department of Defense at sites formerly used by or
under the jurisdiction of the Secretary.'' (10 U.S.C. 2701) DoD
conducts these activities at active and closing Department of Defense
(DoD) installations and formerly used defense sites (FUDS). DoD created
distinct programs within the DERP to address sites environmentally
impacted by DoD's past activities. The Installation Restoration program
(IRP) established in 1986 covers environmental restoration activities
to address hazardous substances, and, pollutants and contaminants. In
September 2001, DoD established the Military Munitions Response program
(MMRP) to manage cleanup of unexploded ordnance, discarded military
munitions, and munitions constituents at areas other than operational
ranges. The Building Demolition/Debris Removal (BD/DR) program category
addresses the demolition and removal of unsafe buildings and structures
at facilities or sites that are or were owned by, leased to, or
otherwise possessed by the United States and under the jurisdiction of
the Secretary of Defense.
During the early years of the DERP, the Office of the Secretary of
Defense (OSD) managed the Defense Environmental Restoration Account
(DERA) for the Department's Military Components--the Army, Navy, Air
Force, Defense Logistics Agency (DLA), and Defense Threat Reduction
Agency (DTRA)--who execute environmental restoration activities at
their respective installations. In 1996, DoD decided to separate, or
devolve, DERA into five Environmental Restoration (ER) accounts to
better align each Military Component's DERP responsibilities and
accountability for environmental cleanup efforts. Policy direction and
oversight of the DERP is the responsibility of the Office of the Deputy
Under Secretary of defense (Installations and Environment). The DoD
Military Components are responsible for program implementation. The
Army, Navy, and Air Force manage their own ER accounts. The U.S. Army
Corps of Engineers manages the FUDS program for the Army, the
Department's designated executive agent for FUDS. The FUDS program
addresses environmental impacts on properties DoD once owned, leased,
or operated and were under the jurisdiction of the Secretary of
Defense. The final ER account, the Defense-Wide account, funds cleanup
programs for DLA and DTRA in addition to providing the operating funds
for OSD's oversight of the DERP. While DoD manages environmental
restoration at Base Realignment and Closure (BRAC) installations as
part of the DERP, it funds these environmental restoration activities
through a separate BRAC Program account, which is part of DoD's overall
Military Construction appropriation.
DoD recognizes the importance of public involvement at military
installations. For the purposes of this proposed rule, the term
installation means operating and closing DoD installations and FUDS
that require environmental restoration. DoD has developed community
involvement policies to ensure that local communities are provided the
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opportunity as early as possible to obtain information about, and
provide input to, the decisions regarding the environmental restoration
activities at military installations. It is DoD policy to provide the
public an opportunity to participate through the establishment of RABs,
among other public involvement opportunities.
Based on statutory and regulatory requirements for community
involvement and recommendations from the Federal Facilities
Environmental Restoration Dialogue Committee (FFERDC), DoD has
strengthened its community involvement efforts, including the RAB
initiative, under its environmental restoration program. DoD believes
that working in partnership with local communities and addressing the
concerns of those communities early in the restoration process has
enhanced its efforts under, and increased the credibility of, the
environmental restoration program. DoD remains committed to involving
communities neighboring its installations in environmental restoration
decision processes that may affect human health, safety, and the
environment. RABs have become a significant component of DoD's efforts
to increase community involvement in DoD's environmental restoration
program. RABs provide a continuous forum through which members of
affected communities can provide input to an installation's ongoing
environmental restoration activities. RAB members provide
recommendations regarding environmental restoration to DoD, RABs are
not Federal Advisory Committees and are specifically excluded from the
requirements of the Federal Advisory Committee Act (10 U.S.C.
2705(d)(2)).
On September 27, 1994, DoD and the Environmental Protection Agency
(EPA) jointly issued guidelines for the formation and operation of RABs
(``Restoration Advisory Board Implementation Guidelines''). The
guidelines describe how to implement the DoD RAB policy and identify
each stakeholder's role with the RAB. The guidelines also state that
existing Technical Review Committees (TRCs) or similar groups may be
expanded or modified to become RABs, and that RABs may fulfill the
statutory requirements for establishing TRCs (10 U.S.C. 2705(d)(1)
grants DoD the authority to establish RABs instead of TRCs at
installations undergoing environmental restoration).
As of September 30, 2003, DoD reported the existence of 298 active
RABs across all of the Military Components' installations. Over the
past several years, the number of RABs has remained fairly consistent,
although the number fluctuates as some RABs adjourn and others form.
RABs are one part of DoD's and the Military Components' extensive
community outreach and public participation activities, which include
compliance with the public notice and participation requirements of the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), Resource Conservation and Recovery Act (RCRA), and other
federal and state environmental laws as well as considerable
consultation with our partners at federal, state and local government
agencies. A RAB, however, may address only issues associated with
environmental restoration activities under the DERP at DoD
installations, including activities conducted under the MMRP category
of the DERP to address unexploded ordnance, discarded military
munitions, and the chemical constituents of munitions. If a RAB already
exists at an installation and MMRP sites are identified, the RAB may be
expanded to consider additional issues related to the MMRP sites. If
the current RAB or DoD installation decides that it is necessary to
involve new stakeholders, the installation should notify potential
stakeholders of its intent to expand the RAB and solicit new members
who have an interest in issues related to the MMRP. If there is no
current RAB active at the installation and MMRP sites are identified,
the installation will follow the prescribe guidance for determining
sufficient community interest in forming a RAB.
The Secretary of Defense is required to ``prescribe regulations
regarding the establishment, characteristics, composition, and funding
of restoration advisory boards'' (10 U.S.C. 2705(d)(2)(A)). DoD's
issuance of regulations is not, however, a precondition to the
establishment of RABs (10 U.S.C. 2705(d)(2)(B)). Therefore, DoD
proposes these regulations regarding the scope, characteristics,
composition, funding, establishment, operation, adjournment, and
dissolution of RABs. DoD recognizes that each RAB established will be a
unique organization dealing with installation-specific issues. This
proposal, developed consistent with the recommendations set forth in
the FFERDC's Final Report, is consistent with existing DoD and EPA
policy on RABs, and reflects over ten years of experience in
establishing and operating RABs throughout the United States. DoD has
structured this proposal to maximize flexibility for RAB members and
installations nationwide.
III. Summary of the Proposed Rule
DoD is requesting public comment on these proposed regulations
regarding the scope, characteristics, composition, funding,
establishment, operation, adjournment, and dissolution of RABs. This
section of the preamble provides a summary of the proposed regulations
in 32 CFR part 202.
A. General Requirements
In this section of the proposed rule, DoD discusses the purpose,
scope, relevant definitions, and applicability of the proposed
regulations for RABs. DoD is required by 10 U.S.C. 2705(d)(2)(A) to
issue regulations concerning the establishment, characteristics,
composition, and funding of RABs. When issued as a final rule, the
regulations will apply to all RABs, regardless of when they were
established.
In this proposal, DoD defines the purposes of a RAB as follows:
Provide an expanded opportunity for stakeholder
involvement in the environmental restoration process at DoD
installations.
Act as a forum for the discussion and exchange of
restoration program information, addressing the concerns of
stakeholders and effectively reaching key groups and representatives
from DoD, regulatory agencies, tribes, and the community.
Provide an opportunity for RAB members to review progress
and participate in a dialogue with the installation's decision makers
concerning environmental restoration matters. Installations will
listen, carefully-consider, and provide specific responses to the
recommendations provided by the individual RAB members. While a RAB
will complement other community involvement efforts the installation
undertakes concerning environmental restoration, a RAB does not replace
other types of community outreach and participation activities required
by applicable federal and state laws.
A RAB may address issues associated with environmental restoration
activities under the DERP at DoD installations. DoD funds RABs with
money dedicated to supporting environmental restoration activities
under the DERP. DoD understands that RABs may want to address
environmental issues beyond the scope of environmental restoration
activities. In these circumstances the installation co-chair should
assist the interested individuals in finding the proper venue
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to support a broader scope of issues. Environmental groups or advisory
boards that address issues other than environmental restoration
activities are not governed by this regulation.
The Office of the Deputy Under Secretary of Defense for
Installations and Environment will issue guidance regarding the scope,
characteristics, composition, funding, establishment, operation,
adjournment, and dissolution of RABs pursuant to this rule. The
issuance of the guidance is not a precondition to the establishment of
RABs or the implementation of this rule.
This section of the proposed rule also discusses the criteria for
establishment, notification of the formation, and composition of a RAB.
B. Operating Requirements
In this section of the proposed rule, DoD establishes basic
requirements for the operation of a RAB. DoD proposes that each RAB
will have a mission statement that describes its overall purpose and
goals. DoD also specifies certain requirements regarding the selection
process for co-chairs.
DoD proposes that each RAB will develop a set of operating
procedures. Areas that may be addressed in the procedures include:
clearly defined goals and objectives for the RAB, as determined by the
DoD installation co-chair in consultation with the RAB; development and
approval procedures for the RAB meeting minutes; attendance of members
at meetings; meeting frequency and location; rules of order; frequency
and procedures for conducting training; procedures for selecting,
adding, or removing RAB members and co-chairs; specifics on the size of
the RAB membership and the length of service for RAB members and co-
chairs; methods for resolving disputes; processes for reviewing and
responding to public comments on issues being addressed by the RAB;
procedures for public participation in RAB activities; and keeping the
public informed about RAB proceedings.
DoD is not proposing specified requirements concerning the conduct
of RAB meetings because the meeting format of each RAB will vary and be
dictated by the needs of the participants. DoD proposes, however, that
all RAB meetings be open to the public; the installation will provide
timely notice of each meeting in a local newspaper of general
circulation; each RAB meeting will be held at a reasonable time and in
a manner or place reasonably accessible to and usable by persons with
disabilities; the installation co-chair will prepare meeting minutes of
the RAB meetings; and the meeting minutes and other relevant documents
will be available for public inspection and copying at a single,
publicly accessible location. Additionally, the installation will
document information on the activities of a RAB in the information
repository.
In this section of the proposed rule, DoD also establishes
requirements for adjourning a RAB. An Installation Commander may
adjourn a RAB when there is no longer a need for a RAB or when
community interest in the RAB declines. For FUDS, the Installation
Commander may be the District Commander or equivalent.
Although Installation Commanders are expected to make every
reasonable effort to ensure that a RAB performs its role as efficiently
as possible, circumstances may prevent a RAB from operating efficiently
or fulfilling its intended purpose. When this occurs, the Installation
Commander will make a concerted attempt to resolve the issues that
affect the RAB's effectiveness. If unsuccessful, the Installation
Commander may elect to dissolve the RAB. The Installation Commander
should discuss dissolution with regulators and the community as a whole
before making a final decision. This section of the rule provides
guidelines for how an Installation Commander may elect to dissolve a
RAB.
In this section of the proposed rule, DoD sets forth requirements
for adjourning a RAB, adjournment procedures, dissolving a RAB,
dissolution procedures, reestablishing an adjourned or dissolved RAB,
and public comment.
C. Administrative Support, Funding, and Reporting Requirements
In this section of the proposed rule, DoD sets forth requirements
regarding administrative support for establishing, operating, and
adjourning or dissolving a RAB, funding for administrative support, and
reporting requirements regarding the activities and administrative
expenses associated with RABs.
The Installation Commander, or if there is no such Commander, an
appropriate DoD official, is authorized to pay for routine
administrative expenses of a RAB established at an installation (10
U.S.C. 2705(d)(3)). To implement this provision, this proposed rule
requires that the installation provide administrative support to
establish and operate a RAB, subject to the availability of funds. The
scope of this support corresponds to those activities that are eligible
for DoD funding, including:
RAB establishment
Membership selection
Training that meets certain criteria
Meeting announcements
Meeting facility, including accommodations necessary to
comply with the Americans with Disabilities Act
Meeting facilitators, including translators
Meeting materials and minutes preparation
RAB-member mailing list maintenance and RAB materials
distribution
RAB adjournment and dissolution.
The Secretaries of the Military Departments will make funds available
for RAB administrative expenses (10 U.S.C. 2705(g)), subject to
appropriations. The proposed rule establishes these requirements and
specifies that active installations should pay for RAB administrative
expenses using funds from their Military Component's ER accounts. The
ER-FUDS account is used to pay for RAB administrative expenses at FUDS.
At BRAC installations, the Base Closure account is used to pay for RAB
administrative expenses.
This section of the rule also discusses the opportunities for the
RAB to obtain technical assistance to facilitate members' understanding
of the scientific and engineering issues underlying environmental
restoration activities through DoD's Technical Assistance for Public
Participation (TAPP) program. The DoD installation may also provide in-
house assistance to discuss technical issues.
DoD is required to report annually to Congress on the activities of
Technical Review Committees (TRCs) and RABs (10 U.S.C. 2706(a)(2)(J)).
In order to fulfill this requirement, this proposed rule requires that
where RABs are established the installation documents the activities of
the RAB and tracks expenditures for administrative expenses of the RAB.
This proposed rule does not prescribe specific procedures for the
installation to follow as part of DoD's information collection when
reporting to Congress. Rather, DoD will rely on existing internal
reporting mechanisms within the Department and Military Components to
collect this information annually.
IV. Section-by-Section Analysis of the Proposed Rule
This section of the preamble presents an analysis of each section
of the proposed rule.
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A. General Requirements
1. Purpose, Scope, Definitions, and Applicability
a. Purpose. The purpose of this part is to establish regulations
regarding the characteristics, composition, funding, and establishment
of RABs, as required by 10 U.S.C. 2705(d)(2)(A), and the operation,
adjournment, and dissolution of RABs.
b. Purpose and Scope of Responsibilities of a RAB. DoD is proposing
the purposes of a RAB be:
To provide an expanded opportunity for stakeholder
involvement in the environmental restoration process at DoD
installations. DoD considers ``stakeholders'' to be parties that are
actually or potentially affected by environmental restoration
activities at an installation.
To act as a forum for the discussion and exchange of
restoration program information between DoD, regulatory agencies, and
the community.
To provide an opportunity for RAB members to review
progress and participate in a dialogue with the installation's decision
makers concerning environmental restoration matters. Installations will
listen, give careful consideration, and provide specific responses to
the recommendations provided by individual RAB members. Consensus is
not a prerequisite for RAB member recommendations.
A RAB may address issues associated with environmental restoration
activities under the DERP at DoD installations. DoD funds RABs with
money dedicated to supporting environmental restoration activities
under the DERP. DoD understands that RABs may want to address
environmental issues beyond the scope of environmental restoration
activities. In these circumstances the installation should assist the
interested individuals in finding the proper venue to support a broader
scope of issues. Environmental groups, advisory boards, or other
entities that address issues other than environmental restoration
activities are not RABs.
This proposed rule does not list specific responsibilities of RAB
members, but DoD considers the following types of activities within the
scope of RAB members' functions:
Providing advice to the installation, EPA, state
regulatory agency, and other government agencies on restoration
activities and community involvement.
Addressing important issues related to restoration, such
as the scope of studies, cleanup levels, waste management, and remedial
action alternatives.
Reviewing and evaluating documents associated with
environmental restoration activities, such as plans and technical
reports.
Identifying environmental restoration projects to be
accomplished in the next fiscal year and beyond.
Recommending priorities among environmental restoration
sites or projects.
Attending regular meetings that are open to the public and
scheduled at convenient times and locations.
Interacting with the local redevelopment authority (LRA)
or other land use planning bodies to discuss future land use issues
relevant to environmental restoration decision-making.
Providing feedback to other community members on RAB
activities and share community concerns and input with the RAB.
By establishing a RAB, DoD hopes to ensure that interested
stakeholders have a voice and can actively participate in a timely and
thorough manner in the planning and implementation of the environmental
restoration process. A RAB will serve as one method for the expression
and careful consideration of diverse points of view.
Installations will listen and give careful consideration to all
advice provided by individual members.
DoD proposes that each installation undergoing environmental
restoration activities establish a RAB where there is sufficient and
sustained community interest. Where TRCs or similar advisory groups
already exist, the TRC or similar advisory group will be considered for
conversion to a RAB, provided there is sufficient and sustained
interest within the community. DoD will recognize only one RAB or TRC
per installation.
c. Definitions. In this section:
Installation will include active and closing Department of
Defense (DoD) installations and formerly used defense sites (FUDS).
Community RAB member shall mean those individuals
identified by community members and appointed by the Installation
Commander to participate in a RAB who live and/or work in the affected
community or are affected by the installation's environmental program.
Environmental restoration shall include the
identification, investigation, research and development, and cleanup of
contamination from hazardous substances, and pollutants and
contaminants.
Installation Commander will include the Commanding Officer
of an installation; the Installation Commander or other Military
Department officials who close the facility and are responsible for its
disposal at BRAC installations; or the U.S. Army Corps of Engineers
Project Management District Commander at FUDS properties.
Public participants shall include anyone else who may want
to attend the RAB meetings, including those individuals who may not
live and/or work in the affected community or may not be affected by
the installation's environmental program but would like to attend and
provide comments to the RAB.
Stakeholders are those parties that may be affected by
environmental restoration activities at an installation, including
family members of military personnel and civilian workers, and tribal
community members and indigenous people, as appropriate.
Tribes means any federally recognized American Indian and
Alaska Native government as defined by the most current Department of
Interior/Bureau of Indian Affairs list of tribal entities published in
the Federal Register pursuant to Section 104 of the Federally
Recognized Tribe Act.
RAB adjournment means when an Installation Commander, in
consultation with the EPA, state, tribes, RAB members, and the local
community, as appropriate, closes the RAB based on a determination that
there is no longer a need for a RAB or when community interest in the
RAB declines sufficiently.
RAB dissolution means when an Installation Commander
disbands a RAB that is no longer fulfilling the intended purpose of
advising and providing community input to an Installation Commander and
decision makers on environmental cleanup projects. Installation
Commanders are expected to make every reasonable effort to ensure that
a RAB performs its role as effectively as possible and makes a
concerted attempt to resolve issues that affect the RAB's
effectiveness. There are circumstances, however, that may prevent a RAB
from operating efficiently or fulfilling its intended purpose.
d. Other Public Involvement Activities. RABs are one part of DoD
and the Military Components' extensive community outreach and public
participation activities, which include compliance with the public
notice and participation requirements of CERCLA, RCRA, and other
federal and state environmental laws, as well as considerable
consultation with our partners at federal, state, and local
environmental and resource agencies.
e. Applicability of Regulations to Existing RABs. DoD is proposing
these
[[Page 4066]]
regulations regarding the establishment, characteristics, composition,
and funding of RABs (10 U.S.C. 2705(d)(2)A)) to formalize current
Department policy. DoD intends that the final regulations will apply to
all RABs, including RABs established prior to the effective date of the
final rule. DoD does not consider that applying final regulations to
RABs already established will pose any additional requirements or
conflict because the proposed regulations are based on existing DoD
policy that has been implemented since September 1994.
f. Guidance. The Office of the Deputy Under Secretary of Defense
for Environment will issue guidance regarding the scope,
characteristics, composition, funding, establishment, operation,
adjournment, and dissolution of RABs pursuant to this rule. The
issuance of the guidance is not a precondition to the establishment of
RABs or the implementation of this rule.
2. Criteria for Establishment
a. Determining if Sufficient Interest Warrants Establishing a RAB.
In this rule, RABs may only be established at installations undergoing
environmental restoration. There may be only one RAB per installation.
In accordance with existing policy, DoD proposes that a RAB be
established when the Installation Commander finds sufficient and
sustained community interest and any of the following criteria are met:
The closure of an installation involves the transfer of
property to the community;
At least 50 local citizens petition for a RAB;
Federal, state, tribal, or local government
representatives request formation of a RAB; or
The installation determines the need for a RAB.
To clarify how an installation will determine the need for a RAB,
DoD proposes that the Installation Commander determine the level of
interest within the community for establishing a RAB by:
Reviewing correspondence files;
Reviewing media coverage;
Consulting community members;
Consulting relevant government officials; and
Evaluating responses to communication efforts, such as
notices placed in local newspapers.
At the majority of installations that have an environmental
restoration program, DoD expects that local communities will be
interested in forming a RAB. DoD notes that installation efforts
identify the level of community interest in establishing a RAB should
not be limited to a one-time assessment of the criteria discussed
above. In special circumstances it may be advantageous to establish a
joint RAB for multiple installations. The decision to establish a joint
RAB must be made in consultation with RAB members. Only one RAB,
however, will be recognized per installation. If a RAB already exists
at an installation and there will be MMRP sites, the RAB may be
expanded to consider issues related to the MMRP sites. If the current
RAB or DoD installation decides that it is necessary to involve new
stakeholders, then installation should notify potential stakeholders of
its intent to expand the RAB and solicit net members who have an
interest in issues related to the MMRP.
Where RABs are not formed initially, installations undergoing
environmental restoration activities will reassess community interest
at least every 24 months. Reassessment of community interest should
include public notice through local media, such as a local newspaper.
Where the reassessment finds sufficient and sustained community
interest, the installation should establish a RAB. Where the
reassessment does not find sufficient and sustained community interest
in a RAB, the installation will document, in a memorandum for the
Administrative Record, the procedures followed in the reassessment and
the findings of the reassessment.
When all environmental restoration decisions have been made and
required remedies are in place and properly operating at an
installation, reassessment of the community interest for establishing
or reestablishing a RAB is not necessary every 24 months. When
additional environmental restoration decisions have to be made
resulting from subsequent actions, such as long-term monitoring and
five-year reviews, the installation will reassess community interest
for establishing or reestablishing a RAB.
b. Responsibility for Forming and Operating a RAB. Once the
installation determines that a RAB will be established, DoD proposes
that the Installation Commander have the lead responsibility for
forming and operating the RAB. The Installation Commander should have
lead responsibility because the RAB will be an integral part of the
installation's community involvement and outreach programs. The
Installation Commander may also delegate his or her duties to
appropriate personnel but retains oversight authority and
responsibility. DoD recommends that installations involve, as
appropriate, EPA, and state, tribal, and local governments and
community members in all phases of RAB planning and operation.
c. Converting Existing Technical Review Committees (TRCs) to RABs.
Before the implementation of RABs, TRCs were established at DoD
installations to provide interested parties with a forum to discuss and
provide input into environmental restoration activities. In accordance
with 10 U.S.C. 2705(d)(1), a RAB fulfills the requirements of 10 U.S.C.
2705(c), which directs DoD to establish TRCs. DoD recommends that,
where TRCs or similar advisory groups already exist, provided there is
sufficient and sustained interest within the community for a RAB, the
TRC or similar advisory group should be considered for conversion to a
RAB.
RABs expand the TRC initiative in the following ways: (1) RABs
involve a greater number of community members than TRCs, thereby better
incorporating the diverse needs and concerns of the community directly
affected by environmental restoration activities; and (2) chairmanship
of the RAB is shared between the installation and community, promoting
partnership and careful consideration of the community's concerns in
the decision-making process.
In order to convert a TRC to a RAB, DoD should increase community
representation, evaluate and ensure the diversity of community
representation, add a community co-chair, and open meetings to the
public.
3. Notification of Formation of a RAB
a. Public Notice and Outreach. Prior to establishing a RAB or
converting a TRC to a RAB, DoD proposes that an installation notify
potential stakeholders of its intent to form a RAB. In announcing the
formation of a RAB, the installation should describe the purpose of a
RAB and discuss membership opportunities.
DoD recommends that every effort be made to ensure that a broad
spectrum of individuals or groups representing the community's
interests are informed about the RAB, its purposes, and membership
opportunities. In some cases, it may necessary that the installation
directly solicit some groups or organizations, particularly groups that
may be traditionally under represented, such as low-income and minority
segments of the population. It is important that RAB memberships are
fairly balanced in terms of points of view represented and functions to
be performed. Installations should consult the existing TRC, EPA, and
state, tribal, and local government representatives
[[Page 4067]]
for information or other comments before providing this notice.
b. RAB Information Meeting. While not required in the proposed
rule, DoD suggests that an installation sponsor an informational
meeting prior to establishing a RAB. The focus of this meeting will be
to introduce the concept of RABs to the community and to begin the
membership solicitation process.
4. Composition of a RAB
a. Membership. RAB membership shall be well balanced and reflect
the diverse interests within the local community. Therefore, DoD
proposes that each RAB should consist of representatives of the
Military Component (the U.S. Army Corps of Engineers for FUDS), members
of the community, EPA, and state, tribal, or local government
representatives, as appropriate. RAB meetings will be widely publicized
and open to all. Representatives of organizations and agencies who lie
and work outside the affected area are encouraged to voice their
opinions at RAB meetings within the rules of conduct established by the
RAB.
b. Government Representation. In addition to the Military
Component, DoD proposes that EPA and state, tribal, and local
governments should be represented on the RAB, as they fulfill important
roles because of their regulatory oversight of DoD environmental
restoration activities. Potential candidates may include the Remedial
Project Manager (RPM) from the installation, EPA at the discretion of
the EPA Administrator, as well as representatives from the state,
tribal, or local government agencies. In the case of closing military
installations, members of the BRAC Cleanup Team (BCT) may serve on the
RAB as government representatives. It is important that any government
representative chosen for RAB membership dedicate the time necessary,
and have sufficient authority, to fulfill all RAB responsibilities.
Ideally, DoD believes that RABs should have only one representative
from each government agency, so as to prevent an inordinate
representation by government and DoD officials. While DoD encourages
other government representatives to attend RAB meetings, these
representatives' role will be strictly one of providing information and
support.
c. Community Representation. While DoD is not proposing specific
procedures to be used for selecting community members of the RAB, DoD
notes that one of the most sensitive issues facing installations that
establish a RAB concerns the selection of community members. When
members of the community feel the selection process for RAB members,
particularly of community members, is conducted in an objective and
unbiased manner, it enhances their perception that the RAB can be a
credible forum for the discussion of their issues and concerns. If the
selection of community members is not approached carefully, the result
can be a loss of trust.
To support the objective selection of community RAB members,
installations will use a selection panel comprised of community members
to nominate community RAB members. The Installation Commander in
consultation with the state, tribal, and local governments and EPA, as
appropriate, will identify community interests and solicit names of
individuals who can represent these interests on the selection panel.
The panel will establish and announce the following:
Procedures for nominating community RAB members,
Process for reviewing community interest,
Criteria for selecting community RAB members, and
List of RAB nominees.
Following the panel nominations, the Installation Commander, in
consultation with the state and EPA as appropriate, will review the
nominations to ensure the panel fairly represents the local community.
The Installation Commander will then appoint the community RAB members.
Some installations are located in close proximity to American
Indian and Alaska Native communities. While DoD encourages individual
tribal members to participate on RABs, RABs in no way replace or serve
as a substitute forum for the government-to-government relationship
between DoD and federally-recognized tribes, as defined by the most
current Department of Interior/Bureau of Indian Affairs list of tribal
entities published in the Federal Register pursuant to Section 104 of
the Federally Recognized Indian Tribe List Act.
RAB community members should live and/or work in the affected
community or be affected by the installation's environmental
restoration program. DoD will not limit participation in the RAB of
potential members who have or may bid on DoD contracts, if proper and
appropriate assurances to avoid any potential conflicts of interest are
issued. DoD will, however, apply applicable conflict of interest rules,
pursuant to the Federal Acquisition Regulation.
At closing installations, members of the LRA, as defined under
BRAC, are included as stakeholders and are encouraged to attend RAB
meetings. There is not a specific requirement, however, that LRA
members be invited to be a member of the RAB.
d. Chairmanship. DoD proposes that chairmanship of the RAB be
shared between the installation and the community. DoD believes this
will promote partnering between DoD and the community and reflect DoD's
commitment to consider the community's concerns when making decisions
about the environmental restoration process. Together, the installation
and community co-chairs jointly will determine meeting agendas, run
meetings, and ensure that issues related to environmental restoration
are raised and adequately considered.
e. Compensation for Community RAB Members. DoD also is specifying
in the proposed rule that the community co-chair and community RAB
members are expected to serve without compensation for their services.
DoD considers community membership on a RAB to be voluntary, and,
therefore, DoD will not pay these members for their participation.
f. Roles and Responsibilities of Members. DoD is not proposing
specific requirements concerning the roles and responsibilities of
individual members of a RAB. DoD considers the issuance of such
regulations to be overly burdensome to the formation and operation of
RABs, and, therefore, unnecessary.
B. Operating Requirements
1. Creating a Mission Statement
DoD proposes that each RAB should have a mission statement that
articulates the overall purpose of the RAB. DoD considers this
necessary to provide focus and objectives for the group. In addition,
when members of the RAB understand their mission from the onset, it
provides a framework for discussions. Without the framework,
discussions may become hampered with issues that are not relevant to
the environmental restoration process. The DoD installation co-chair in
conjunction with the RAB members will determine the RAB mission
statement consistent with guidance provided by the DoD Component. The
mission statement should be discussed with the RAB and the DoD
installation co-chair will listen to and consider the RAB members'
comments before finalizing.
2. Selecting Co-Chairs
DoD proposes that the installation co-chair be selected either by
the Installation Commander or equivalent,
[[Page 4068]]
or defined by military service-specific guidance, while the community
members of the RAB will select the community co-chair. DoD considers it
necessary for the community members to select their co-chair to ensure
their active participation in the operation of the RAB and to help
ensure that the RAB can be a credible forum for discussing community
issues and concerns. Public participants are not afforded the
opportunity to vote for the community co-chair.
3. Developing Operating Procedures
DoD considers a formal and agreed-upon set of operating procedures
necessary to manage the business of RABs. While DoD will allow each RAB
to customize or tailor its operating procedures as it sees fit, DoD
proposes that the co-chairs be responsible for the operating
procedures, to include:
Setting clearly defined goals and objectives for the RAB.
These should be discussed with the RAB, and the DoD installation co-
chair will listen to, consider, and provide specific responses to the
RAB members' comments before finalizing the goals and objectives.
Ensuring that an agenda is developed for RAB meetings. The
agenda is considered an important organizational tool that should be
developed to reflect the interests and concerns of RAB members.
Announcing meetings.
Establishing attendance requirements of members at
meetings.
Developing and approving procedures for the minutes of RAB
meetings.
Meeting frequency and location.
Establishing the Rules of Order.
Announcing the frequency and procedures for conducting
training.
Establishing procedures for selecting or replacing the
community co-chair and selecting, replacing, or adding community RAB
members.
Specifying the size of the RAB membership and the periods
for membership and co-chair length of service.
Reviewing and responding to public comments.
Establishing the participation of the public.
Keeping the public informed about proceedings of the RAB.
Discussing the agenda for the next meeting and issues to
be addressed.
4. Training RAB Members
DoD is not proposing a requirement for training members of the RAB.
DoD believes, however, that RAB members may need some initial
orientation training to enable them to fulfill their responsibilities.
DoD recommends that the installation should work with EPA, the state,
tribes, and environmental groups to develop methods to quickly inform
and educate the RAB members and to promote the rapid formation of a
fully functioning RAB.
DoD notes that under this proposed rule, only certain types of
training will be considered within the scope of administrative support
for RABs, and therefore, may be financed using funds allocated to the
administrative expenses of RABs. DoD further discusses training in
context of administrative support eligible for available funding in
section IV.C.1.b. of this preamble.
5. Conducting RAB Meetings
a. Public Participation. DoD believes the meeting format of each
RAB will vary and be dictated by the needs of the participants.
Therefore, DoD is not proposing specific procedures for conducting RAB
meetings. All RAB meetings, however, shall be open to the public. The
installation co-chair should prepare and publish a timely public notice
in a local newspaper of general circulation announcing each RAB
meeting. Each RAB meeting will be held at a reasonable time and in a
manner or place reasonably accessible to and usable by persons with
disabilities. Interested persons will be permitted to attend, appear
before, or file statements with any RAB, subject to such reasonable
rules or regulations that may be prescribed.
b. Nature of Discussions. Regarding the nature of discussions at
RAB meetings, the installation will listen and give careful
consideration to all advice provided by the individual RAB members.
While voting or polling the members may facilitate RAB discussions,
such votes are advisory only and not binding on agency decision makers.
It is a RAB's decision on how to propose and debate recommendations;
and this decision should be agreed upon by the RAB. Group consensus is
not a prerequisite for RAB input; each member of the RAB may provide
advice as an individual.
c. Meeting Facilitator: RABs may recommend to use a trained
facilitator who is a neutral third-party and is acceptable to all
members of the board. The facilitator's role is to guide the RAB
through a cooperative communication process in order to fulfill the
group's stated purpose or agenda as easily as possible. The facilitator
has no substantive decision-making authority. The facilitator focuses
on the group's communication process rather than the technical content
of what is discussed.
d. Meeting minutes. DoD proposes that the installation co-chair, in
coordination with the community co-chair, will prepare minutes of each
RAB meeting. The RAB meeting minutes will be kept and will contain a
record of the persons present, a complete and accurate description of
matters discussed and opinions voiced, and copies of all reports
received, issued, or considered by the RAB. At the installation's
discretion, a court reporter or electronic taping is allowable, whether
through live transmission or video or audiotape. The accuracy of all
minutes will be certified by the RAB co-chairs. Although not required,
DoD recommends that the installation consider mailing copies of the
minutes to all community members who attended the meeting and/or to
people identified on the installation's community relations mailing
list. This is to ensure dissemination of the results to community
members and interested parties.
6. RAB Adjournment and Dissolution
In this section of the proposed rule, DoD sets forth requirements
for adjourning a RAB, adjournment procedures, dissolving a RAB,
dissolution procedures, reestablishing an adjourned or dissolved RAB,
and public comment.
a. RAB Adjournment
(1) Requirements for RAB Adjournment. An Installation Commander may
adjourn a RAB when there is no longer a need for a RAB or when
community interest in the RAB declines.
RABs may adjourn in the following situations:
A record of decision has been signed for all DERP sites on
the installation.
An installation has achieved response complete at all
sites and no further environmental restoration decisions are required.
An installation has all remedies in place. When all
environmental restoration decisions have been made and required
remedies are in place and properly operating at an installation, the
RAB may adjourn or decide to become inactive. The installation (or the
designated authority at closure installations) will establish a
mechanism to inform the community, including former RAB members, about
subsequent actions, such as long-term monitoring and five-year reviews,
that may interest the RAB and allow the community to address this
information as appropriate. At a minimum, the installation will provide
this
[[Page 4069]]
information to the community through status report mailings, Web sites,
or local information repositories.
The RAB has achieved its objectives as defined in the RAB
Operating Procedures.
If there is no longer sufficient, sustained community
interest, as documented by the installation with RAB community members
and community-at-large input, to sustain the RAB. The Installation
Commander will be responsible for reassessing community interest that
could warrant reactivating or reestablishing the RAB.
The installation has been transferred out of DoD control
and DoD is no longer responsible for making restoration response
decisions.
(2) Adjournment Procedures. The Installation Commander should
consult with EPA, states, tribes, RAB members, and the local community,
as appropriate, regarding adjourning the RAB before making a final
decision. The Installation Commander should consider all responses when
determining the appropriate action.
If the Installation Commander decides to adjourn the RAB, the
Installation Commander will document the rationale for adjournment in a
memorandum for inclusion in the Administrative record, notify the
public of the decision through written notice to the RAB members and
through publication of a notice in a local newspaper of general
circulation, and describe other ongoing public involvement
opportunities that are available.
b. RAB Dissolution
(1) Requirements for RAB Dissolution. An Installation Commander may
recommend dissolution of a RAB when a RAB is no longer fulfilling the
intended purpose of advising and providing community input to an
Installation Commander and decision makers on environmental cleanup
projects as described in IV.A.1.b. Although Installation Commanders are
expected to make every reasonable effort to ensure that a RAB performs
its role as effectively as possible, circumstances may prevent a RAB
from fulfilling the intended purpose as described in this rule. When
this occurs, the Installation Commander will make a concerted attempt
to resolve the issues that affect the RAB's effectiveness. If
unsuccessful, the Installation Commander may elect to recommend
dissolution of the RAB. In making such a decision, if environmental
restoration activities are not complete, the Installation Commander
should ensure that the community involvement program detailed in the
Community Relations Plan provides for continued effective stakeholder
input.
(2) Dissolution Procedures. The installation co-chair should
consult with the community, EPA and state, tribal and local government
representatives as appropriate, regarding dissolving the RAB. The
installation co-chair should notify the RAB community co-chair and
members in writing of the intent to dissolve the RAB and the reasons
for doing so, and provide the RAB members 30 days to respond in
writing. The installation co-chair should consider RAB member
responses, and in consultation with EPA and state, tribal and local
government representatives, as appropriate, determine the appropriate
action.
If the Installation Commander decides to proceed with recommending
the RAB for dissolution, the Installation Commander should notify the
public of the proposal to dissolve the RAB and provide a 30-day public
comment period on the proposal (see section d. Public Comment for
further discussion). At the conclusion of the public comment period,
the Installation Commander will review the public comments, consult
with EPA, state, tribal and local government representatives, as
appropriate, and render a recommendation.
The recommendation, responsiveness summary, and all supporting
documentation should be sent via the chain-of-command to the Military
Component's Environmental Deputy Assistant Secretary (or equivalent)
for approval or disapproval. The Military Component's Environmental
Deputy Assistant Secretary (or equivalent) will notify the Office of
the Deputy Under Secretary of Defense (Installations & Environment) (or
equivalent) of the decision to approve or disapprove the request to
dissolve the RAB and the rationale for that decision.
Once the Military Component's Environmental Deputy Assistant
Secretary (or equivalent) makes a final decision, the Installation
Commander will document the rationale for dissolution in a memorandum
for inclusion in the Administrative Record, notify the public of the
decision through written notice to the RAB members and through
publication of a notice in a local newspaper of general circulation,
and describe other ongoing public involvement opportunities that are
available.
c. Reestablishing an Adjourned or Dissolved RAB. An installation
may reestablish an adjourned or dissolved RAB if there is sufficient
and sustained community interest in doing so and there are
environmental restoration activities still ongoing at the installation.
Where a RAB is adjourned or dissolved and environmental restoration
activities continue, the installation should reassess community
interest at least every 24 months. When all environmental restoration
decisions have been made and required remedies are in place and
properly operating at an installation, reassessment of the community
interest for reestablishing the RAB is not necessary. When additional
environmental restoration decisions have to be made resulting from
subsequent actions, such as long-term monitoring and five-year reviews,
the installation will reassess community interest for reestablishing
the RAB.
Reassessment should include, at a minimum, consultation with the
chain-of-command, EPA, state, tribes, and the local community as
appropriate, and a 30-day public comment period (see section d. Public
Comment for further discussion). Where the reassessment finds
sufficient and sustained community interest, at a previously adjourned
RAB the Installation Commander should reestablish a RAB.
If there is interest for reestablishment at a previously dissolved
RAB, but the Installation Commander determines that the same conditions
exist that required the original dissolution, he or she will request,
through the chain of command to the service component deputy assistant
secretary, an exception to reestablishing the RAB. If those conditions
no longer exist at a previously dissolved RAB, and there is interest in
reestablishment the Installation Commander should notify the deputy
assistant secretary of their recommendation for the RAB to be
reestablished. The deputy assistant secretary will take the
Installation Commander's recommendation under advisement and may
approve that RAB for reestablishment.
Where the reassessment does not find sufficient and sustained
community interest in reestablishing the RAB, the Installation
Commander should document (in a memorandum for the record) the
procedures followed in the reassessment and the findings of the
reassessment. This document will be included in the Administrative
Record for the installation.
d. Public Comment. If the Installation Commander intends to
recommend dissolution of a RAB or reestablish a dissolved RAB, the
Installation Commander will notify the public of the proposal to
dissolve or reestablish the RAB and provide a 30-day public comment
period on the proposal. The Installation Commander will notify the
public of the decision through
[[Page 4070]]
publication of a notice in a local newspaper of general circulation and
distribute the notice to community members. The installation's Public
Affairs Office should have an updated mailing list. At the conclusion
of the public comment period, the Installation Commander will review
public comments, consult with the RAB, EPA, and state, tribal, or local
government representatives, as appropriate, prepare a responsiveness
summary, and render a recommendation. The Installation Commander will
notify the public of the decision.
7. Documenting RAB Activities
Additionally, the installation will document the relevant
information on the activities of a RAB in the Administrative Record.
These activities will include, but are not limited to:
Installation's efforts to survey community interest in
forming a RAB,
Steps taken to establish a RAB where there is sustained
community interest,
How the RAB relates to the overall community involvement
program, and
Steps taken to adjourn the RAB.
The records, reports, minutes, appendixes, working papers, drafts,
studies, agenda, or other documents that were made available to or
prepared for or by each RAB will be available for public inspection and
copying at a single, publicly accessible location, such as the
information repositories established under the installation's Community
Relations Plan, a public library, or in the offices of the installation
to which the RAB reports, until the RAB ceases to exist.
To the extent that RAB input is considered in a decision regarding
environmental restoration activities, relevant information on the RAB
activities will be included in the Administrative Record.
C. Administrative Support, Funding, and Reporting Requirements
1. Administrative Support and Eligible Expenses
a. Administrative Support. The Installation Commander, or if there
is no such Commander, an appropriate DoD official, is authorized to pay
for routine administrative expenses of a RAB established at an
installation (10 U.S.C. 2705(d)(3)). To implement this provision, this
proposed rule requires that the installation provide administrative
support to establish, operate, and adjourn a RAB, subject to the
availability of funds. Securing ongoing administrative support is
especially important for closing or closed installations.
DoD proposes to define the scope of activities that are unique to
the establishment and operation of RABs, and therefore eligible as a
RAB administrative expense.
b. Eligible Administrative Expenses. In order for an activity to be
considered as an eligible RAB administrative cost, the activity must be
unique to and directly associated with establishing and operating the
RAB. For example, an advertisement for a RAB meeting is an eligible RAB
administrative cost. However, producing a fact sheet as part of
obtaining a hazardous waste storage permit under RCRA or hosting an
installation open house as specified by the Community Relations Plan
under CERCLA, may not necessarily be relevant to a RAB's mission
statement or operations. The costs incurred in preparing and
distributing such a fact sheet or holding the open house would not be
considered administrative support required for a RAB.
While DoD cannot identify all possible examples of activities
unique to and directly associated with establishing and operating a
RAB, DoD proposes to consider the following activities as typical of
administrative support required for a RAB:
RAB establishment.
Membership selection.
Training if it is unique to and mutually benefits the
establishment and operation of a RAB and relevant to the environmental
restoration activities occurring at the installation.
Meeting announcements.
Meeting facility.
Meeting facilitators, including translators.
Meeting agenda materials and minutes preparation.
RAB-member mailing list maintenance and RAB materials
distribution.
RAB adjournment.
Training for RAB members is considered an eligible administrative
cost if it mutually benefits all members of a RAB and is relevant to
the environmental restoration activities occurring at the installation.
For example, if the installation were to hold an orientation training
for members of a RAB, costs incurred in preparing training manuals,
slides, or other presentation materials would be considered an
allowable administrative expense because such training is mutually
beneficial to all members of the RAB. A type of training that would not
qualify as a RAB administrative support includes specialized training
for an individual member of a RAB, such as an off-site workshop on
building leadership capabilities. However, DoD notes that types of
training that are not eligible for funding as a RAB administrative
expense may qualify and be eligible for funding as technical
assistance.
RAB administrative support is for RAB purposes only. RAB
administrative expenses do not include general community involvement
expenses, such as preparation of public outreach materials, responses
to public comment, or repository costs. RAB administrative support does
not include efforts to determine community interest in forming a RAB
that does not result in the actual formation of a RAB. These items will
be categorized as a community involvement expense.
Additional types of expenses ineligible as RAB administrative costs
include, but are not limited to:
Salaries for DoD personnel.
Dedicated equipment such as computers, software, facsimile
machines, telephone lines, or electronic mail for community RAB
members.
Renting dedicated office space for community RAB members.
Administrative support to community members of the RAB.
Printed stationery and personal business cards.
Temporary duty/travel, conference attendance, or fees,
except where prior approval has been granted by DoD.
Compensation to RAB members for meeting attendance, work
hours lost, time reviewing and commenting on documents, travel to
meetings, or long distance telephone calls.
c. Funding. The Secretaries of the Military Departments will make
funds available for RAB administrative expenses (10 U.S.C. 2705(g)),
subject to the availability of funds. Funds requested for environmental
restoration activities that were appropriated to Military Components'
ER or BRAC accounts or the ER-FUDS account may be used to provide
administrative support to RABs. Such funds will not be used to support
the activities of environmental groups or advisory boards in addressing
issues other than environmental restoration activities. The
Installation Commander is authorized to pay routine administrative
expenses of the RABs, in accordance with 10 U.S.C. Sec. 2705(d)(3).
The activities of the RAB and expenditures of such funds for
administrative expenses will be reported to ODUSD(I&E), at a minimum,
on an annual basis.
2. Technical Assistance for Public Participation (TAPP)
Community members of a RAB may request technical assistance from
the
[[Page 4071]]
private sector to assist their understanding of the scientific and
engineering issues underlying eligible DoD environmental restoration
activities. Technical assistance may be made available to community
members of RABs or TRCs in accordance with 10 U.S.C. 2705(e) and the
TAPP regulations found at 32 CFR part 203. RABs may submit TAPP
requests to the Installation Commander, or to an appropriate DoD
official. The DoD installation may also provide in-house assistance to
discuss technical issues.
3. Documenting and Reporting Activities and Expenses
DoD is required to report to Congress on the activities of TRCs and
RABs (10 U.S.C. 2706(a)(2)(J)). In order to fulfill this requirement,
this proposed rule requires that, where RABs are established, the
installation documents the activities of the RAB and tracks
expenditures for administrative expenses of the RAB. With regards to
tracking expenses, DoD recommends that installations tally costs
according to the specific activities identified above (see section
IV.C.1.b. of this rule) that are typical of administrative support
required for RAB.
Although this proposed rule requires installations to document RAB
activities and track expenditures, DoD is not prescribing specific
procedures to accomplish this. In addition, DoD will use internal
Department and Military Component-specific reporting mechanisms to
obtain required information from installations on RAB activities and
expenditures when reporting to Congress.
V. Regulatory Analysis
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), as
amended, DoD must determine whether a regulatory action is
``significant'' and therefore subject to review by the Office of
Management and Budget (OMB) and the requirements of the Executive
Order.
DoD has determined that this proposed rule is not a ``significant
regulatory'' action because it is unlikely to:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, productivity,
competition, jobs, environment, public health, or safety of state,
local, or tribal governments or communities;
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan program or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
B. Regulatory Flexibility Act
It has been certified that this proposed rule is not subject to the
Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et seq. because it
would not, if promulgated, have a significant economic impact on a
substantial number of small entities. The primary effect of the
proposed rule will be to increase community involvement in DoD's
environmental restoration program.
C. Paperwork Reduction Act
It has been certified that the proposed rule does not impose any
reporting or recordkeeping requirements subject to the Paperwork
Reduction Act of 1995 (Pub. L. 104-13).
VI. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995, DoD
must prepare a statement to accompany any rule where the estimated
costs to state, local, or tribal governments in the aggregate, or to
the private sector, will be $100 million or more in any one year.
DoD has determined that this proposed rule will not include a
federal mandate that may result in estimated costs of $100 million or
more to either state, local, or tribal governments in the aggregate, or
to the private sector.
List of Subjects in 32 CFR Part 202
Administrative practice and procedure, Environmental protection--
restoration, Federal buildings and facilities, Organization and
functions (Government agencies).
Title 32 of the Code of Federal Regulations, Chapter I, Subchapter
M, is proposed to be amended by adding part 202 to read as follows:
PART 202--RESTORATION ADVISORY BOARDS (RABs)
Subpart A--General Requirements
Sec.
202.1 Purpose, scope, definitions, and applicability.
202.2 Criteria for establishment.
202.3 Notification of formation of a Restoration Advisory Board.
202.4 Composition of a RAB.
Subpart B--Operating Requirements
202.5 Creating a mission statement.
202.6 Selecting co-chairs.
202.7 Developing operating procedures.
202.8 Training RAB members.
202.9 Conducting RAB meetings.
202.10 RAB adjournment and dissolution.
202.11 Documenting RAB activities.
Subpart C--Administrative Support, Funding, and Reporting Requirements
202.12 Administrative support and eligible expenses.
202.13 Technical assistance for public participation (TAPP).
202.14 Documenting and reporting activities and expenses.
Authority: 5 U.S.C. 551 et seq. and 10 U.S.C. 2705.
Subpart A--General Requirements
Sec. 202.1 Purpose, scope, definitions, and applicability.
(a) Purpose. The purpose of this part is to establish regulations
regarding the scope, characteristics, composition, funding,
establishment, operation, adjournment, and dissolution of Restoration
Advisory Boards (RABs).
(b) Purpose and scope of responsibilities of RABs. The purpose of a
RAB is to provide:
(1) An opportunity for stakeholder involvement in the environmental
restoration process at Department of Defense (DoD) installations.
Stakeholders are those parties that may be affected by environmental
restoration activities at the installation.
(2) A form for the discussion and exchange of environmental
restoration program information between DoD installations, regulatory
agencies, tribes and the community.
(3) An opportunity for RAB members to review progress, participate
in a dialogue with, and provide comments and advice to the
installation's decision makers concerning environmental restoration
matters. Installations shall give careful consideration to the comments
provided by the RAB members.
(c) Definitions. In this section:
(1) Community RAB member shall mean those individuals identified by
community members and appointed by the Installation Commander to
participate in a RAB who live and/or work in the affected community or
are affected by the installation's environmental program.
(2) Environmental restoration shall include the identification,
investigation, research and development, and cleanup of contamination
from hazardous substances, and pollutants and contaminants.
(3) Installation shall include active and closing Department of
Defense (DoD) installations and formerly used defense sites (FUDS).
[[Page 4072]]
(4) Installation Commander shall include the Commanding Officer or
the equivalent of a Commanding Officer at active installations; the
Installation Commander or other Military Department officials who close
the facility and are responsible for its disposal at Base Realignment
and Closure (BRAC) installations; or the U.S. Army Corps of Engineers
Project Management District Commander at FUDS.
(5) Public participants shall include anyone else who may want to
attend the RAB meetings, including those individuals may not live and/
or work in the affected community or may not be affected by the
installation's environmental program but would like to attend and
provide comments to the RAB.
(6) Stakeholders are those parties that may be affected by
environmental restoration activities at an installation, including
family members of military personnel and civilian workers, and tribal
community members and indigenous people, as appropriate.
(7) Tribes shall mean any federally recognized American Indian and
Alaska Native government as defined by the most current Department of
Interior/Bureau of Indian Affairs list of tribal entities published in
the Federal Register pursuant to Section 104 of the Federally
Recognized Tribe Act.
(8) RAB adjournment shall mean when an Installation Commander, in
consultation with the Environmental Protection Agency (EPA), state,
tribes, RAB members, and the local community, as appropriate, closes
the RAB based on a determination that there is no longer a need for a
RAB or when community interest in the RAB declines.
(9) RAB dissolution shall mean when an Installation Commander
disbands a RAB that is no longer fulfilling the intended purpose of
advising and providing community input to an Installation Commander and
decision makers on environmental restoration projects. Installation
Commanders are expected to make every reasonable effort to ensure that
a RAB performs its role as effectively as possible and a concerted
attempt to resolve issues that affect the RAB's effectiveness. There
are circumstances, however, that may prevent a RAB from operating
effectively or fulfilling its intended purpose.
(d) Other public involvement activities. A RAB should complement
other community involvement efforts occurring at an installation;
however, it does not replace other types of community outreach and
participation activities required by applicable laws and regulations.
(e) Applicability of regulations to existing RABs. The regulations
in this part apply to all RABs regardless of when the RAB was
established.
(f) Guidance. The Office of the Deputy Under Secretary of Defense
for Environment shall issue guidance regarding the scope,
characteristics, composition, funding, establishment, operation,
adjournment, and dissolution of RABs pursuant to this rule. The
issuance of any such guidance shall not be a precondition to the
establishment RABs or the implementation of this rule.
Sec. 202.2 Criteria for establishment.
(a) Determining if sufficient interest warrants establishing a RAB.
A RAB should be established when there is sufficient and sustained
community interest, and any of the following criteria are met:
(1) The closure of an installation involves the transfer of
property to the community;
(2) At least 50 local citizens petition the installation for
creation of a RAB;
(3) Federal, State, tribal, or local government representatives
request the formation of a RAB; or
(4) The installation determines the need for a RAB. To determine
the need for establishing a RAB, an installation should:
(i) Review correspondence files;
(ii) Review media coverage;
(iii) Consult local community members;
(iv) Consult relevant government officials; and
(v) Evaluate responses to communication efforts, such as notices
placed in local newspapers.
(b) Responsibility for forming or operating a RAB. The installation
shall have lead responsibility for forming and operating a RAB.
(c) Converting existing Technical Review Communittees (TRCs) to
RABs. In accordance with 10 U.S.C. 2705(d)(1), a RAB may fulfill the
requirements of 10 U.S.C. 2705(c), which directs DoD to establish TRCs.
DoD recommends that, where TRCs or similar advisory groups already
exist, the TRC or similar advisory group be considered for conversion
to a RAB, provided there is sufficient and sustained interest within
the community.
Sec. 202.3 Notification of formation of a Restoration Advisory Board.
Prior to establishing a RAB, an installation shall notify potential
stakeholders of its intent to form a RAB. In announcing the formation
of a RAB, the installation should describe the purpose of a RAB and
discuss opportunities for membership.
Sec. 202.4 Composition of a RAB.
(a) Membership. At a minimum, each RAB shall include
representatives from DoD and the community. RAB community membership
shall be well balanced and reflect the diverse interests within the
local community.
(1) Government representation. The RAB may also include
representatives from the EPA at the discretion of the Administrator of
the appropriate EPA regional office, and state, tribal, and local
governments, as appropriate. At closing installations, representatives
of the BRAC Cleanup Team (BCT) may also serve as the government
representative(s) of the RAB.
(2) Community representation. Community RAB members should live
and/or work in the affected community or be affected by the
installation's environmental restoration program. While DoD encourages
individual tribal members to participate on RABs, RABs in no way
replace or serve as a substitute forum for the government-to-government
relationship between DoD and federally-recognized tribes.
(b) Chairmanship. Each RAB established shall have two co-chairs,
one representing the DoD installation and the other the community. Co-
chairs shall be responsible for directing and managing the RAB
operations.
(c) Compensation for community members of the RAB. The community
co-chair and community RAB members serve voluntarily; therefore, DoD
will not compensate them for their participation.
Subpart B--Operating Requirements
Sec. 202.5 Creating a mission statement.
The DoD installation co-chair in conjunction with the RAB members
shall determine the RAB mission statement in accordance with guidance
provided by the DoD Component.
Sec. 202.6 Selecting co-chairs.
(a) DoD installation Co-chair. The DoD installation co-chair shall
be selected by the Installation Commander or equivalent, or in
accordance with Military Service-specific guidance.
(b) Community Co-chair. The Community co-chair shall be selected by
the community RAB members.
Sec. 202.7 Developing operating procedures.
(a) Each RAB shall develop a set of operating procedures. Areas
that should be addressed in the procedures include:
(1) Clearly defined goals and objectives for the RAB, as determined
by
[[Page 4073]]
the DoD installation co-chair in consultation with the RAB.
(2) Meeting announcements.
(3) Attendance requirements of members at meetings.
(4) Development and approval procedures for the minutes of RAB
meetings.
(5) Meeting frequency and location.
(6) Rules of order.
(7) The frequency and procedures for conducting training.
(8) Procedures for selecting or replacing co-chairs and selecting,
replacing, or adding RAB members.
(9) Specifics on the size of the RAB, periods of membership, and
co-chair length of service.
(10) Review and responses to public comments.
(11) Participation of the general public.
(12) Keeping the public informed about proceedings of the RAB.
(13) Discussing the agenda for the next meeting and issues to be
addressed.
(b) [Reserved].
Sec. 202.8 Training RAB members.
Training is not required for RAB members. It may be advisable,
however, to provide RAB members with some initial orientation training
to enable them to fulfill their responsibilities. Funding for training
activities must be within the scope of administrative support for RABs,
as permitted in Sec. 202.12.
Sec. 202.9 Conducting RAB meetings.
(a) Public participation. RAB meetings shall be open to the public.
(1) The installation co-chair shall prepare and public a timely
publish notice in a local newspaper of general circulation announcing
each RAB meeting.
(2) Each RAB meeting shall be held at a reasonable time and in a
manner or place reasonably accessible to and usable by persons with
disabilities.
(3) Interested persons shall be permitted to attend, appear before,
or file statements with any RAB, subject to such reasonable rules or
regulations as may be prescribed.
(b) Nature of discussions. The installation shall give careful
consideration to all comments provided by the individual RAB members.
(c) Meeting minutes. The installation co-chair, in coordination
with the community co-chair, shall prepare minutes of each RAB meeting.
(1) The RAB meeting minutes shall be kept and shall contain a
record of the persons present, a complete and accurate description of
matters discussed and comments received, and copies of all reports
received, issued, or approved by the RAB. The accuracy of all minutes
shall be certified by the RAB co-chairs.
(2) The records, reports, minutes, appendixes, working papers,
drafts, studies, agenda, or other documents that were made available to
or prepared for or by each RAB shall be available for public inspection
and copying at a single, publicly accessible location, such as the
information repositories established under the installation's Community
Relations Plan, a public library, or in the offices of the installation
to which the RAB reports, until the RAB ceases to exist.
Sec. 202.10 RAB adjournment and dissolution.
(a) RAB adjournment. (1) Requirements for RAB adjournment. An
Installation Commander may adjourn a RAB when there is no longer a need
for a RAB or when community interest in the RAB declines. RABs may
adjourn in the following situations:
(i) A record of decision has been signed for all DERP sites on the
installation.
(ii) An installation has achieved response complete at all sites
and no further environmental restoration decisions are required.
(iii) An installation has all remedies in place.
(iv) The RAB has achieved the desired end goal as defined in the
RAB Operating Procedures.
(v) There is no longer sufficient, sustained community interest, as
documented by the installation with RAB community members and
community-at-large input, to sustain the RAB. The installation shall
continue to monitor for any changes in community interest that could
warrant reactivating or reestablishing the RAB.
(vi) The installation has been transferred out of DoD control and
DoD is no longer responsible for making restoration response decisions.
(2) Adjournment procedures. If the Installation Commander is
considering adjourning the RAB, the Installation Commander shall:
(i) Consult with the EPA, state, tribes, RAB members, and the local
community, as appropriate, regarding adjourning the RAB and consider
all responses before making a final decision.
(ii) Document the rationale for adjournment in a memorandum for
inclusion in the Administrative Record, notify the public of the
decision through written notice to the RAB members and through
publication of a notice in a local newspaper of general circulation,
and describe other ongoing public involvement opportunities that are
available, if the Installation Commander decides to adjourn the RAB.
(b) RAB dissolution. (1) Requirements for RAB dissolution. An
Installation Commander may recommend dissolution of a RAB when a RAB is
no longer fulfilling the intended purpose of advising and providing
community input to an Installation Commander and decision makers on
environmental restoration projects as described in Sec. 202.1(b).
(2) Dissolution procedures. If the Installation Commander is
considering dissolving the RAB, the Installation Commander shall:
(i) Consult with EPA, state, tribal and local government
representatives, as appropriate, regarding dissolving the RAB.
(ii) Notify the RAB community co-chair and members in writing of
the intent to dissolve the RAB and the reasons for doing so and provide
the RAB members 30 days to respond in writing. The Installation
Commander shall consider RAB member responses, and in consultation with
EPA, state, tribal and local government representatives, as
appropriate, determine the appropriate action.
(iii) Notify the public of the proposal to dissolve the RAB and
provide a 30-day public comment period on the proposal, if the
Installation Commander decides to proceed with dissolution. At the
conclusion of the public comment period, the Installation Commander
will review the public comments, consult with EPA, state, tribal and
local government representatives, as appropriate, and render a
recommendation.
(iv) Send the recommendation, responsiveness summary, and all
supporting documentation via the chain-of-command to the Military
Component's Environmental Deputy Assistant Secretary (or equivalent)
for approval or disapproval. The Military Component's Environmental
Deputy Assistant Secretary (or equivalent) shall notify the Office of
the Deputy Under Secretary of Defense (Installations & Environment) (or
equivalent) of the decision to approve or disapprove the request to
dissolve the RAB and the rationale for that decision.
(v) Document the rationale for dissolution in a memorandum for
inclusion in the Administrative Record, notify the public of the
decision through written notice to the RAB members and through
publication of a notice in a local newspaper of general circulation,
and describe other ongoing public involvement opportunities that are
[[Page 4074]]
available, once the Military Component's Environmental Deputy Assistant
Secretary (or equivalent) makes a final decision.
(c) Reestablishing an adjourned or dissolved RAB. An Installation
Commander may reestablish an adjourned or dissolved RAB if there is
sufficient and sustained community interest in doing so and there are
environmental restoration activities still ongoing at the installation.
Where a RAB is adjourned and environmental restoration activities
continue, the Installation Commander should reassess community interest
at least every 24 months. When all environmental restoration decisions
have been made and required remedies are in place and properly
operating at an installation, reassessment of the community interest
for reestablishing the RAB is not necessary. When additional
environmental restoration decisions have to be made resulting from
subsequent actions, such as long-term monitoring and five-year reviews,
the installation will reassess community interest for reestablishing
the RAB. Where the reassessment finds sufficient and sustained
community interest at previously adjourned RAB, the Installation
Commander should reestablish a RAB. Where the reassessment does not
find sufficient and sustained community interest in reestablishing the
RAB, the Installation Commander shall document in a memorandum for the
record the procedures followed in the reassessment and the findings of
the reassessment. This document shall be included in the Administrative
Record for the installation. If there is interest for reestablishment
at a previously dissolved RAB, but the Installation Commander
determines that the same conditions exist that required the original
dissolution, he or she will request, through the chain of command to
the service component deputy assistant secretary, an exception to
reestablishing the RAB. If those conditions no longer exist at a
previously dissolved RAB, and there is interest in reestablishment the
Installation Commander should notify the deputy assistant secretary of
the recommendation for the RAB to be reestablished. The deputy
assistant secretary will take the Installation Commander's
recommendation under advisement and may approve that RAB for
reestablishment.
(d) Public comment. If the Installation Commander intends to
recommend dissolution of a RAB or reestablish a dissolved RAB, the
Installation Commander shall notify the public of the proposal to
dissolve or reestablish the RAB and provide a 30-day public comment
period on the proposal. At the conclusion of the public comment period,
the Installation Commander shall review public comments, consult with
EPA, and state, tribal, or local government representatives, as
appropriate, prepare a responsiveness summary, and render a
recommendation. The recommendation, responsiveness summary, and all
supporting documentation should be sent via the chain-of-command to the
Military Component's Environmental Deputy Assistant Secretary (or
equivalent) for approval or disapproval. The Installation Commander
shall notify the public of the decision.
Sec. 202.11 Documenting RAB activities.
The installation shall document information on the activities of a
RAB in the Information Repository. When RAB input has been used in
decision-making, it should be documented as part of the Administrative
Record. These activities shall include, but are not limited to:
(a) Installation's efforts to survey community interest in forming
a RAB;
(b) Steps taken to establish a RAB where there is sustained
community interest;
(c) How the RAB relates to the overall community involvement
program; and
(d) Steps taken to adjourn, dissolve, or reestablish the RAB.
Subpart C--Administrative Support, Funding, and Reporting
Requirements
Sec. 202.12 Administrative support and eligible expenses.
(a) Administrative support. Subject to the availability of funding,
the installation shall provide administrative support to establish and
operate a RAB.
(b) Eligible administrative expenses for a RAB. The following
activities specifically and directly associated with establishing and
operating a RAB shall qualify as an administrative expense of a RAB:
(1) RAB establishment.
(2) Membership selection.
(3) Training if it is:
(i) Unique to and mutually benefits the establishment and oeration
of a RAB; and
(ii) Relevant to the environmental restoration activities occurring
at the installation.
(4) Meeting announcement.
(5) Meeting facility.
(6) Meeting facilitators, including translators.
(7) Preparation of meeting agenda materials and minutes.
(8) RAB-member mailing list maintenance and RAB materials
distribution.
(c) Funding. Subject to the availability of funds, administrative
support to RABs may be funded as follows:
(1) At active installations, administrative expenses for a RAB
shall be paid for using funds from the Military Component's
Environmental Restoration accounts.
(2) At BRAC installations, administrative expenses for a RAB shall
be paid using BRAC funds.
(3) At FUDS, administrative expenses for a RAB shall be paid using
funds from the Environmental Restoration account for the Formerly Used
Defense Sites program.
Sec. 202.13 Technical assistance for public participation (TAPP).
Community members of a RAB or TRC may request technical assistance
for interpreting scientific and engineering issues with regard to the
nature of environmental hazards at the installation and environmental
restoration activities conducted, or proposed to be conducted at the
installation in accordance with 10 U.S.C. 2705(e) and the TAPP
regulations found at 32 CFR part 203.
Sec. 202.14 Documenting and reporting activities and expenses.
The installation at which a RAB is established shall document the
activities and record the administrative expenses associated with the
RAB. Installations shall use internal department and Military
Component-specific reporting mechanisms to submit required information
on RAB activities and expenditures.
Dated: January 19, 2005
Jeannette Owings-Ballard,
Federal Register Liaison Officer, Department of Defense.
[FR Doc. 05-1550 Filed 1-27-05; 8:45 am]
BILLING CODE 3810-01-M