[Federal Register: January 28, 2005 (Volume 70, Number 18)]
[Proposed Rules]               
[Page 4061-4074]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28ja05-41]                         

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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

[[Page 4063]]

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

[[Page 4064]]

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.

[[Page 4065]]

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