[Federal Register Volume 73, Number 181 (Wednesday, September 17, 2008)]
[Rules and Regulations]
[Pages 53705-53716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21751]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 215 and 218
RIN 0596-AC15
Predecisional Administrative Review Process for Hazardous Fuel
Reduction Projects Authorized Under the Healthy Forests Restoration Act
of 2003
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: This document makes final the interim rule that was published
on January 9, 2004, with minor changes to both parts 215 and 218. This
rule establishes a process by which the public may file objections to
seek administrative review of proposed hazardous fuel reduction
projects authorized by the Healthy Forests Restoration Act of 2003
(HFRA), Public Law 108-148. Section 105 of the act directs the
Secretary of Agriculture to publish final regulations following public
comment on the interim final regulations. This final rule refines the
HFRA objection procedures based on public comment and agency experience
applying the interim final rule. These changes add clarity to the
procedural direction, describe authorized hazardous fuel reduction
projects not subject to objection, clarify notification requirements,
clarify the eligibility criteria for who may file an objection, provide
for the incorporation of certain documents into objections by
reference, and clarify how timeliness of objection filing will be
determined.
DATE: Effective Date: This rule is effective October 17, 2008.
ADDRESSES: The Forest Service objection procedures for proposed
hazardous fuel reduction projects authorized by the HFRA are set out in
36 CFR part 218, which is available electronically on the World Wide
Web at http://www.fs.fed.us/objections/objections_related.php#app_work . Single paper copies are available by contacting Kevin Lawrence,
Forest Service-USDA, Ecosystem Management Coordination Staff (Mail Stop
1104), 1400 Independence Avenue, SW., Washington, DC 20250-1104.
Additional information can be found at http://www.fs.fed.us/emc/applit/.
FOR FURTHER INFORMATION CONTACT: Assistant Director for Appeals and
Litigation Deborah Beighley at (202) 205-1277 or Appeal Specialist
Kevin Lawrence at (202) 205-2613. Individuals who use telecommunication
devices for the deaf may call the Federal Information Relay Service at
1-800-877-8339 between 8 a.m. and 8 p.m. Eastern Standard Time, Monday
through Friday.
SUPPLEMENTARY INFORMATION: On December 3, 2003, President George W.
Bush signed into law the Healthy Forests Restoration Act of 2003 (HFRA)
to reduce the threat of destructive wildfires while upholding
environmental standards and encouraging early public input during
planning processes.
One of the provisions of the Act (section 105) required the
Secretary of Agriculture to issue an interim final rule to establish a
predecisional administrative review process for hazardous fuel
reduction projects authorized by the HFRA and to promulgate final
regulations after providing for public comments.
On January 9, 2004, the Forest Service published an interim final
rule and request for comments (69 FR 1529). The interim final rule
established a predecisional administrative review process at 36 CFR
part 218, subpart A, and 36 CFR part 215 was amended to exempt
hazardous fuel reduction projects authorized by the HFRA from the
notice, comment, and appeal procedures set out at part 215.
In giving direct notice of the interim final rule, the Department
also set a 90-day comment period and invited comments from individuals,
industry, national organizations, and Federal agencies. A total of 67
comment letters were received from individuals, representatives of
State government agencies, environmental groups, professional
organizations, and industry. Each comment received consideration in the
development of the final rule.
The Department has also used the intervening time since the comment
period on the interim final rule to gain additional experience with its
implementation. Forest Service records indicate approximately 80
decisions have been issued for fuels reduction projects under HFRA
Title I authority since the beginning of 2005. The Agency's application
of the pre-decisional objection process to these projects has provided
valuable insight to
[[Page 53706]]
how the interim final rule functions in practice, including where it
might be improved. The lessons learned from this experience are
reflected in several of the changes made in the final rule.
The following is a summary of public comments and the Department's
responses, including changes from the interim final rule.
General Comments
The Forest Service received some comments related to support for,
or opposition to, the HFRA. These comments are not directly relevant to
this rulemaking. They were read and considered, but are not being
discussed in this notice.
Comments in Response to Specific Sections
Set out below are discussions and responses to public comments
received on specific sections in 36 CFR part 218 during the comment
period on the interim final rule. The discussion identifies differences
between the interim final rule and the final rule and why these changes
were made. The final rule has been reorganized and, for the reader's
convenience, new titles and new designations are set out in the table
below. In addition, references to ``land and resource management
plans'' in part 218 and the amended section 215.3(a) of the interim
final rule have been shortened to ``land management plans'' to reflect
the wording in the recently published 36 CFR part 219 final rule for
National Forest System Land Management Planning (73 FR 21468).
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Interim rule section number and title Final section number and title
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Sec. 218.1 Purpose and scope......... Sec. 218.1 Purpose and scope.
Sec. 218.2 Definitions............... Sec. 218.2 Definitions.
Sec. 218.3 Authorized hazardous fuel Sec. 218.3 Authorized
reduction projects subject to the hazardous fuel reduction
objection process. projects subject to objection.
Sec. 218.4 Authorized
hazardous fuel reduction
projects not subject to
objection.
Sec. 218.4 Legal notice of objection Sec. 218.5 Giving notice of
process for proposed authorized objection process for proposed
hazardous fuel reduction projects. authorized hazardous fuel
reduction projects subject to
objection.
Sec. 218.5 Reviewing officer......... Sec. 218.6 Reviewing officer.
Sec. 218.6 Who may file an objection. Sec. 218.7 Who may file an
objection.
Sec. 218.7 Filing an objection....... Sec. 218.8 Filing an
objection.
Sec. 218.8 Objections set aside from Sec. 218.9 Objections set
review. aside from review.
Sec. 218.9 Objection time periods and Sec. 218.10 Objection time
process. periods and process.
Sec. 218.10 Resolution of objections. Sec. 218.11 Resolution of
objections.
Sec. 218.11 Timing of authorized Sec. 218.12 Timing of
hazardous fuel reduction project authorized hazardous fuel
decision. reduction project decision.
Sec. 218.12 Secretary's authority.... Sec. 218.13 Secretary's
authority.
Sec. 218.13 Judicial proceedings..... Sec. 218.14 Judicial
proceedings.
Sec. 218.14 Information collection Sec. 218.15 Information
requirements. collection requirements.
Sec. 218.15 Applicability and Sec. 218.16 Applicability and
effective date. effective date.
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Section 218.1 Purpose and scope. This section describes the purpose
and scope of the rule. There were no comments on section 218.1, and no
changes were made to this section in the final rule.
Section 218.2 Definitions. This section defines some of the
commonly used terms and phrases in the final rule. In addition to the
changes made in response to public comment as described below, a
sentence has been added to the end of the definition for ``objection
period'' to specify that when the Chief is the responsible official the
objection period begins following publication of a notice in the
Federal Register. This addition reflects a change made at section
218.5(c) of the final rule.
Comment: Definition of Lead Objector. One respondent stated the
section 218.2 definition for lead objector, under which the objection
reviewing officer could choose one person to represent all parties
participating in a multi-party objection, is ill advised. The
respondent believed all objectors should have the right to communicate
with the Forest Service during the informal disposition process and at
any other time when communication between objectors and the Forest
Service is appropriate or necessary.
Response: The interim final rule does not state that the lead
objector is appointed by the objection reviewing officer. Section
218.7(d) of the interim final rule (section 218.8(c) in the final rule)
describes the minimum content requirements of an objection and one of
those requirements is ``(3) When multiple names are listed on an
objection, identification of the lead objector (Sec. 218.2).'' This is
required by the Department so that a lead objector speaks for one
objection filed by multiple parties. A lead objector has been so
defined at section 218.2.
Identification of a lead objector is important for timely and
effective communication. The regulations also state that the objector
may request to meet to discuss issues raised in the objection, and the
regulations state that all meetings are open to the public. If the lead
objector of a multi-party objection requests a meeting, the meeting
would be open to all the parties.
Comment: Definition of Objector. Some respondents commented that
the rules for who could object were not consistent throughout part 218.
They felt terminology should be used that would clarify whether
objectors had to comment during scoping or during a comment period.
Response: The criteria for qualifying as an objector have been
clarified in section 218.7(a) of the final rule, and that section is
now specifically referenced in the definition of an objector in section
218.2. For proposed authorized hazardous fuel reduction projects
described in a draft environmental impact statement (EIS), such
opportunity for public comment will be fulfilled during scoping, the
comment period on the draft EIS in accordance with procedures in 40 CFR
1506.10, or any other periods where public comment is specifically
requested. For proposed authorized hazardous fuel reduction projects
described in an environmental assessment (EA), such opportunity for
public comment will be fulfilled during scoping or any other periods
where public comment is specifically requested.
[[Page 53707]]
Comment: Definition of Reviewing Officer. Some respondents
commented that the reviewing officer should be someone other than an
agency employee who they allege may have a conflict of interest or
financial bias in the decision. Some respondents felt that the
reviewing officer should have some ``distance'' from the decision. They
felt a reviewing officer for a district ranger decision should be at
the regional level and not a forest supervisor who has a supervisory
interest in the district ranger decision. Other respondents felt the
reviewing officer should be an independent administrative law judge
appointed by the Secretary of Agriculture.
Response: Those alleging a potential for financial bias on the part
of a higher-level agency official contend that hazardous fuel reduction
projects may result in revenue retained by the Forest Service (e.g.,
deposits made to the Salvage Sale Fund, Knutson-Vandenberg Fund, Brush-
Disposal Fund, or other Forest Service account), and that the
Constitution requires that adjudicators employed independently of the
Forest Service decide objections to this class of projects. It is
correct that receipts generated from the sale of timber products
generated by hazardous fuel reduction projects may be directed into any
of a number of special fund accounts. The Forest Service annually
reports to Congress, as part of the President's Budget, all its
receipts, including those from timber sales, and how those receipts are
disbursed--disbursed to the states and counties where National Forest
System lands are located, returned to the U.S. Treasury, or deposited
to the Knutson-Vandenberg Fund, the Brush-Disposal Fund, etc. The
Forest Service must use the receipts that it keeps from timber sales
for tightly defined purposes, as required by the statutes authorizing
the special fund accounts. This information is available to Congress as
it develops the annual budget appropriation for the Forest Service. The
statutes authorizing collection of these funds and the budget process
clearly demonstrate that Congress understands that money is generated
from the sale of timber from the national forests, and that a portion
of that money may be used for specific forest management purposes.
This issue is closely related to one discussed in the final rule at
36 CFR 215, Notice, Comment, and Appeal Procedures for National Forest
System Projects and Activities (60 FR 33582, June 4, 2003). The
Department decided for project-level appeals that it was appropriate
that the position deciding an appeal should be at the field level. With
the Agency's decentralized organization, review by the decisionmaker's
direct supervisor creates a healthy relationship in the chain of
command and creates incentives for collaboration at the decisionmaking
level. The Department feels that this level of review has been
successful in the part 215 rule for administrative appeals and;
therefore, the part 218 rule for a predecisional administrative review
process follows the same procedure.
Section 218.3 Authorized hazardous fuel reduction projects subject
to objection. This section describes hazardous fuel reduction projects
subject to the objection process. In addition to the change made in
response to public comment as described below, the title of the section
has been changed slightly to be more concise and consistent with the
corresponding section in the part 215 rule for administrative appeals
of project decisions.
Comment: Some respondents commented that non-significant amendments
to a land management plan for HFRA projects should also use the
objection process.
Response: The Department agrees that non-significant amendments to
a land management plan, when approved for a specific HFRA project at
the same time the project decision is made, should be subject to the
predecisional review process. This is consistent with the
administrative review of non-significant amendments associated with
non-HFRA projects (36 CFR part 215) and the objection process under the
planning regulations at 36 CFR part 219. Section 218.3(b) has been
added to the final rule to clarify that such amendments are subject to
the objection process.
New Section 218.4 Authorized hazardous fuel reduction projects not
subject to objection. This section has been added in response to public
comment. It explains when authorized hazardous fuel reduction projects
are not subject to objection.
Comment: A comment was received that a project does not need to be
subject to objection if there were no written comments or if written
comments were supportive, similar to administrative appeal regulations
at part 215.
Response: The Department agrees that the objection process is not
needed when written comments were not received. Clearly, if no one has
established their eligibility to object pursuant to section 218.7,
there is no need to provide an opportunity to file objections.
The Department does not agree that the objection process is not
needed if only supportive comments were received. The HFRA (section
105(a)(3)) directs that those who submit specific written comments that
relate to the proposed action are eligible to participate in the
objection process. No distinction is made between supportive and
critical comments; eligibility is extended in either case. Because
eligibility to participate can be gained through the proper submittal
of supportive comments, it is appropriate to preserve the procedural
opportunity for those who participated in project planning, even where
the filing of objections may be unlikely.
A provision has been added at section 218.4 for making authorized
hazardous fuel reduction projects not subject to objection when no
written comments were received.
Section 218.5 (was section 218.4 in interim final rule) Giving
notice of proposed authorized hazardous fuel reduction projects subject
to objection. This section establishes the requirements for giving
public notice of the opportunity to file an objection to a proposed
authorized hazardous fuel reduction project. In addition to the changes
made in response to public comment as described below, several changes
were made based on additional agency review of the interim final rule
and the Agency's experience with implementing that rule.
The title of the section was modified to more clearly reflect its
purpose and content.
Section 218.5(b) was reworded to specify that the responsible
official must promptly ``distribute'' the final EIS or EA, rather than
``mail'' the documents as stated in the interim final rule. The change
was made to more clearly allow for dissemination of the documents by
means other than just the mail, for example by e-mail. The description
of who should be provided the documents was also changed to remove the
reference to those on a project mailing list and to provide specific
reference to the section of the rule describing who may file an
objection. The reference to a project mailing list was removed so as
not to imply that such a list must be maintained.
An addition was made at section 218.5(c)(1) to require, as part of
the objection content, a concise description of any proposed land
management plan amendments that were proposed along with the project.
This wording was added to provide more consistency with the change at
section 218.3(b) that makes authorized hazardous fuel reduction
projects approved contemporaneously with a plan amendment subject to
objection.
[[Page 53708]]
An addition was made in section 218.5(c)(2)(iv) requiring notices
of objection opportunities to specify that incorporation of documents
by reference is permitted only as provided for at section 218.8(b).
Comment: Some respondents commented that it would be hard for
interested parties to know the objection deadline because it is
published in local newspapers. Some respondents commented that notices
of HFRA projects should be published and publicly available on stable
Web sites on the internet, as well as in newspapers of record.
Response: The requirement for publishing the legal notice in the
newspaper of record is consistent with how notification under the
project-level appeal regulations at 36 CFR part 215 has been conducted
since 1993. The Department believes the rule as stated is the most
accurate method for potential appellants to know the filing end date.
One portion of this section was found upon further review to be
potentially confusing. Section 218.5(b) of the interim final rule
included a requirement, upon completion and mailing of a final EIS or
EA for an authorized hazardous fuel project, to publish legal notice of
the opportunity to object in the applicable newspaper of record. The
section went on to state, ``When the Chief is the Responsible Official,
notice shall also be published in the Federal Register.'' The use of
the word ``also'' suggests in these instances a notice is to be
published in a newspaper of record and the Federal Register even though
there is no provision in the rule for the Chief establishing a
newspaper of record. Furthermore, given the broad geographic scope of
interest in many decisions made by the Chief, it makes little sense to
rely on any one newspaper for providing public notice. This requirement
has, therefore, been modified to remove the word ``also'' so that the
Federal Register will be the only required location for published
notice of an opportunity to object when the Chief is the responsible
official. The option to publish additional notices in one or more
newspapers, as appropriate, will always exist.
At one time, the part 215 rule for project-level appeals directed
that the deadline for filing appeals be published with the notice. As a
result, the Agency had to estimate the date of publication when
preparing notices. Although the Agency can request that newspapers
publish notices on a certain date, a publication date is not
guaranteed. When publication occurs on a different date than estimated,
the result has been conflicting dates and confusion. The Department
believes that removing this requirement resolved the potential for
conflicts and leaves all parties with the same information. The
Department believes that the matter is best addressed by having the
appellant calculate the appeal filing deadline from the published
notice.
The Department also recognizes that those participants eligible to
object to a given decision will be made aware of that opportunity when
they receive a copy of the final EIS or EA that must be distributed
(section 218.5(b) of the final rule; section 218.4(a) of the interim
final rule).
Comment: Some respondents stated that for an EA the public would
not have the opportunity to review and comment on a draft EA, and that
commenting during scoping is difficult because the project plans are
vague. The first time the public would see the EA is when it is
distributed for the 30-day objection process.
Response: Section 104 of the HFRA requires public notice of each
project, a public meeting during the preparation stage of each project,
and collaboration in order to ``encourage meaningful public
participation during preparation of projects.'' The Department believes
these requirements serve to assure ample opportunities for involvement
are provided for those interested in HFRA projects.
There is no precedent for a requirement to take comment on a draft
EA because circulation of a draft EA is not required for projects
falling outside HFRA authority. It is not required by the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321, et seq.), the Appeal
Reform Act (Pub. L. 102-381, 106 Stat. 419), or their implementing
regulations (40 CFR parts 1500 through 1508 and 36 CFR part 215,
respectively). Section 218.5 of the final rule does require the
responsible official to distribute a final EIS or EA prior to making a
decision so that those eligible to file an objection (section 218.7)
have an opportunity to do so.
Given these factors, the Department does not feel that requiring
circulation of a draft EA for HFRA-authorized projects is warranted.
Responsible officials have the option of circulating a draft EA if they
deem it appropriate, but it is not required.
Comment: Some respondents commented that the public must be
informed at the beginning of a project whether it is an HFRA project
and falls under the objection procedure set out in part 218. The public
needs and deserves to know in advance what opportunities will be
available for further comment after scoping.
Response: The final rule requires notification that an authorized
hazardous fuel reduction project is subject to the objection process in
the required newspaper legal notice or Federal Register notice.
However, the public notices, public meetings, and collaboration
required under HFRA will also provide multiple opportunities for public
involvement that will inform the participants early in the process that
the project is an HFRA project. The Department believes an additional
requirement to provide early disclosure that a proposed project is
authorized under HFRA is not warranted; however, paragraph (a) has been
added in the final rule at section 218.5 to clarify that it is
advisable that such disclosure be made during scoping and in the EIS or
EA.
Section 218.6 (was section 218.5 in interim final rule) Reviewing
officer. This section describes the role and authority of the reviewing
officer. No comments were received on section 218.5 of the interim
final rule and no changes were made other than the section designation.
Section 218.7 (was section 218.6 in interim final rule) Who may
file an objection. This section describes who may file an objection,
including the type and timing of participation in the project planning
process that is required to be recognized as an objector.
Comment: Some respondents commented that not allowing the public to
comment on draft EAs violates NEPA.
Response: This assertion is incorrect. NEPA does not require a
draft EA or a comment opportunity on a draft EA. Implementing
regulations for NEPA merely require agencies to ``involve environmental
agencies, applicants, and the public, to the extent practicable, in
preparing assessments'' (40 CFR 1501.4(b)).
Comment: Some respondents commented that prohibiting individuals of
an organization from filing an objection as a member of that
organization undermines case law regarding organizational standing.
Response: Caselaw on organizational standing defines when an
organization may sue in court and assert the rights of the
organization's members in accordance with Article III of the
Constitution. This rule defines the prerequisites for an administrative
review under the HFRA. The two concepts are related, but have separate
legal foundations and need not be identical.
Any number of members of an organization can submit written
[[Page 53709]]
comments. Under this rule, if one comment was submitted by one
authorized representative of the organization, the organization may
object, but the Agency will not accept objections from multiple members
of the organization who did not participate during the process. An
organization represents all its members but does not give standing to
each member to file individual objections. This is the same approach
used with project-level appeal regulations at 36 CFR part 215 that
state, ``Comments received from an authorized representative(s) of an
organization are considered those of the organization only; individual
members of that organization do not meet appeal eligibility solely on
the basis of membership in an organization; the member(s) must submit
substantive comments as an individual in order to meet appeal
eligibility'' (36 CFR 215.13(a)).
Comment: Some respondents commented that anyone should be able to
file an objection. Restricting who can object seems to be an attempt on
the part of the Agency to shortchange the public.
Response: The HFRA specifically states that to be eligible to
participate in the administrative review process for an authorized
hazardous fuels reduction project a person must submit specific written
comments that relate to the proposed action (section 105(a)(3)).
Congress intended for interested persons to participate early in the
project planning process and not wait until the documentation has been
finalized or after the decision has been issued to become involved.
Although the administrative review process is an opportunity to voice
concerns, it is more advantageous to both the responsible official and
the public when those who have helpful and important information that
could affect a decision bring it forward during project planning.
Section 218.8 (was section 218.7 in interim final rule) Filing an
objection. This section describes how to file an objection, including
content requirements and limitations. In addition to the change made in
response to public comment as described below, another change was made
based on additional Agency review of the interim final rule. The
direction in the interim final rule at section 218.7(b) describing the
objector's responsibility for including sufficient narrative in an
objection has been moved to section 218.8(c)(5) in the final rule
because it is more appropriately included with the other content
requirements for an objection.
Comment: Some respondents commented that objections should be
limited to issues raised in specifically written comments. They believe
the Agency should have a fair chance to address and document
significant issues prior to the initiation of administrative review.
Response: The Department interprets HFRA's requirements to provide
an opportunity for public comment, conduct a public meeting, and
facilitate collaboration during preparation of the project as
sufficient to insure issues surface early in the planning process.
While it is most effective to the planning effort if issues are
surfaced early in the process, it is most important that they be
identified and addressed before the decision is made. Therefore, the
Department believes it is unnecessary to limit objections to issues
previously raised in written comments.
Comment: Several respondents commented that the provision that
``incorporation of documents by reference shall not be allowed''
exceeds what is reasonable. Most respondents to this section
recommended that the regulation be revised to prohibit incorporation by
reference of documents outside the existing record. They assert the
requirement in the interim final rule would necessitate the submittal
of large volumes of material and could make faxing or e-mailing
comments difficult or impossible if they could not incorporate relevant
documents by reference. The respondents contend objectors who have
submitted certain documents with previous comments on the project would
have to re-submit them with the objection, even though incorporation by
reference is a standard writing technique in both the scientific and
legal professions and is standard practice by the agencies of the
Federal Government, including the Forest Service.
Response: The Department agrees that there is no need to receive
volumes of information already in the project record, but experience
shows there have also been examples of reference made to studies or
documents that the Agency could not locate or are not readily available
to the reviewing officials. The Department has made changes at section
218.8(b) to list exceptions to the limitation on incorporating
documents by reference, including Federal laws and regulations, Forest
Service directives and land management plans, documents referenced by
the Forest Service in the project documentation, and written comments
previously provided to the Forest Service by the objector during the
project comment period.
Comment: Some respondents requested a provision that allows for
third-party intervention during the objection process so that those
persons who were satisfied with the HFRA project as proposed remain
involved and aware of possible changes that might occur through the
objection process.
Response: Section 218.11 states that all meetings with objectors
are open to the public. Anyone may attend these meetings and remain
informed.
Section 218.9 (was section 218.8 in interim final rule) Objections
set aside from review. This section defines what criteria allow the
objection to be set aside and not reviewed.
Comment: Section 218.8(a)(6) errantly refers to section 218.7(c)(1)
instead of section 218.7(d)(2).
Response: This error has been corrected.
Section 218.10 (was section 218.9 in interim final rule) Objection
time periods and process. This section describes the time period when
objections must be filed, how those time periods are computed, what
evidence will be used to determine timely filing, extensions of time
periods, and the timeframe for issuing written responses to objectors.
In addition to the changes made in response to public comment as
described below, several changes were made for consistency with changes
made elsewhere in the final rule. Specifically, changes were made at
sections 218.10(a), (b)(2), and (b)(3) to reflect the fact that when
the Chief is the responsible official notice of the EA or final EIS is
to be published in the Federal Register (sec. 218.5(c)).
The description of methods for determining timeliness, listed at
section 218.10(c) has been changed to avoid confusion. The rule now
lists four methods of submittal: By mail (that is, sending via the U.S.
Postal Service), electronic transmission (e-mail or facsimile), private
carrier, and hand delivery. For the methods listed at (c)(1)-(3), the
date the objection is sent will be determinative; for hand delivery
((c)(4)), the Agency's date stamp of receipt will be determinative.
It should be noted that, in reference to the method listed at
(c)(1), the term ``postmark'' is a term that only applies to the date
stamp applied by the U.S. Postal Service, but to be abundantly clear
and avoid confusion for those who may not be aware of the narrow
definition of the term, the rule refers to ``U.S. Postal Service
postmark.''
Comment: Several respondents commented on the difficulty in
obtaining the newspaper of record to calculate the end of the objection
[[Page 53710]]
period, asserting that the newspaper of record is sometimes a very
small local or rural paper that is unfamiliar or has limited
distribution. Some suggested that the appropriate forest office provide
a copy of the formal legal notice to anyone requesting it in an
immediate and timely fashion. Some suggested that the rule require the
Forest Service to notify the public of due dates. Some respondents
supported the requirement.
Response: The approach for publishing the legal notice in the
newspaper of record is consistent with the Agency practice for
administrative appeals. The Department believes a consistent approach
will lead to less potential for confusion and provide the most accurate
method for potential objectors to know the filing deadline.
The final rule at section 218.5(b) requires the responsible
official to ``promptly distribute the final environmental impact
statement (FEIS) or the environmental assessment (EA) to those who have
requested the document or are eligible to file an objection in
accordance with Sec. 218.7(a).'' Participants eligible to object will
receive the documents and be made aware of the process and timeframe
for objecting.
Comment: Some respondents commented that the rule states there are
no time extensions for objections, yet the precedent has always been
that in extenuating circumstances the public has been allowed to
request an extension of the comment deadline. Some respondents felt the
objection period should be 120 days long.
Response: One of the purposes of the HFRA is to reduce the threat
of destructive wildfires while upholding environmental standards and
encouraging early public input during review and planning processes.
The time periods were set to keep the analysis process timely. The
intent is for interested persons to participate early in the project
planning process and not wait until after the decision has been issued
to become involved.
Comment: Some respondents felt that the objector should not be
required to ensure receipt of their electronically submitted
objections. They expressed frustration with failures in the electronic
filing system in various locations. One suggestion was that the Forest
Service should acknowledge receipt of electronically submitted comments
or objections.
Response: As a general practice, e-mail inboxes set up to receive
appeals and objections are configured to provide an automated return
receipt; however, as the respondents noted in their comments, these
systems are not infallible and confusion has sometimes resulted.
Because the Agency cannot know when an objection has been e-mailed but
not received, the reference to automated electronic acknowledgement of
e-mailed objections has been removed in the final rule. A statement is
added at section 218.10(c) emphasizing that the responsibility for
assuring timely submittal of an objection is with the objector.
Section 218.11 (was section 218.10 in interim final rule)
Resolution of objections. This section describes the objection
resolution process, including resolution meetings and written responses
to objections.
Comment: Some respondents commented that the reviewing officer's
response should reply to every point made by the citizens; that a
point-by-point review of an objection should be required. Some felt
that allowing the officer to only ``set forth the reasons for the
response'' and consolidate multiple objections to answer with a single
response will not meet the intent of having meaningful public
participation.
Response: It is the intent of the Department that all issues raised
through objection will be reviewed, although the responses may not
necessarily address them individually. To clarify this intent the
wording at section 218.11(b)(1) has been changed to specify a ``point-
by-point response'' is not necessary, rather than a ``point-by-point
review'' as stated in section 218.10(b)(1) of the interim final rule.
The provision stating that the reviewing officer shall ``set forth
the reasons for the response'' means that the response cannot just say
whether or not the objection will lead to a change, but must also
explain why. Consolidating multiple objections and answering with a
single response is appropriate for objections of a similar nature. One
response to all objectors can be entirely appropriate. Consolidated
responses allow same or similar issues to be examined and reported on
efficiently. Duplicating the same response to several objectors is
inefficient and not necessary.
Comment: Some respondents stated section 218.10 of the interim
final rule allows the reviewing officer to give instructions to the
responsible official that could, in effect, change the original
decision. This change could have serious consequences that are not
analyzed in the NEPA document, so this changed decision must be sent
back for NEPA review and a new decision.
Response: The objection process provides a pre-decisional
opportunity for administrative review. There is no ``original''
decision and, therefore, no ``new'' decision that could be issued as a
result of instructions given to the responsible official. The
respondents overlook that Congress selected a pre-decisional review
model to encourage early participation and assure that the Agency has
the flexibility to make changes and accommodations before a decision is
made.
Comment: Some respondents commented that there is nothing in the
interim final regulations to prevent the reviewing officer
consolidating two divergent appeals, appointing a representative with
interests quite antithetical to one or the other party, and then
deciding the consolidated objections based on the participation of the
appointed representative.
Response: Part 218 does not state that the lead objector is
appointed by the reviewing officer. The Department requires, in
instances where multiple names are listed on a single objection, that
the objectors identify their lead objector. This requirement is found
at section 218.8(c)(3) of the final rule. For communication efficiency,
a lead objector is the point of contact for one objection that has been
signed by multiple parties. Separate objections from different parties
may be consolidated for purposes of the Agency response, but are not
represented by one lead objector.
Comment: A respondent commented that section 218.10(b)(2) of the
interim final rule appears to disallow any review of the Forest
Service's response to objections. This appears to conflict with the
Inspector General laws, whistleblower protection laws, and the Data
Quality Act.
Response: This rule only defines the administrative review
permitted under the HFRA. It does not affect rights under any other
statutory or regulatory structure.
Section 218.12 (was section 218.11 in interim final rule) Timing of
authorized hazardous fuel reduction project decision. This section
describes when a responsible official may make a final decision
regarding a proposed authorized hazardous fuel reduction project
pursuant to the HFRA.
Comment: A respondent commented that section 218.11 should be
specific about when implementation may begin.
Response: The part 218 regulations establish a pre-decisional
administrative review process as required by the HFRA. Direction
pertaining to implementation of a decision once it is made will be
found in the NEPA regulations and Agency directives. To clarify the
relationship with the NEPA regulation requirements for decisions made
after preparation of a final EIS, a
[[Page 53711]]
reference to the relevant section of those regulations has been added
at section 218.12(b) of the final rule.
Comment: A respondent commented that section 218.11(a) provides
that the Forest Service ``may not issue a Record of Decision (ROD) or
Decision Notice (DN) concerning an authorized hazardous fuels reduction
project until the Reviewing Officer has responded to all pending
objections.'' However, section 218.9(e) states that the ``Reviewing
Officer shall issue a written response to the objector(s) within 30
days following the end of the objection-filing period.'' The respondent
was concerned that the combined effect of these two provisions could be
to delay issuance of a final decision of the project if the ``written
response'' is not a decision on the objection and urged clarification
that a ``written response'' is the final resolution of the objection.
Response: The ROD and DN are decision documents prepared in
accordance with the NEPA, are signed by the responsible official, and
are directly related to the project itself and how it will be
implemented. The written objection response is the final resolution of
the objection and is written by the reviewing officer. The objection
process is predecisional, meaning it occurs before the project decision
is written by the responsible official. This differs from the project
appeal process at part 215 where appeals are made after the project
decision is made. Under this rule, the EIS or EA is noticed and
distributed, followed by a 30-day period for eligible parties to file
objections. Objections are then resolved within 30 days through a
written response, and then the project decision can be signed by the
responsible official.
Section 218.13 (was section 218.12 in interim final rule)
Secretary's authority. This section describes the Secretary's authority
and establishes that authorized hazardous fuel reduction projects
proposed by the Secretary of Agriculture or the Under Secretary for
Natural Resources and Environment are not subject to the objection
procedures of this part.
Comment: Several respondents were opposed to the exemption of
hazardous fuel reduction projects proposed by the Secretary or Under
Secretary of Agriculture from the provisions of this rule saying this
provision is not authorized by the HFRA and ignores judicial rulings
including interpretations of the Appeal Reform Act. Some respondents
felt that fuel reduction projects are in relatively small local areas
and approval by the Secretary or Under Secretary, in other words, an
officer several levels above the local district ranger or forest
supervisor, would be inappropriate.
Response: Nothing in the HFRA alters the Secretary's long-
established authority to make decisions affecting the Forest Service.
The Department's position has always been that secretarial decisions
are not subject to an administrative review or appeal process under any
of the Forest Service's administrative review systems, and there is no
indication that Congress intended to make such a change through the
HFRA.
Comment: A respondent stated that section 218.12 of the interim
final rule is not clear because it states that authorized hazardous
fuel reduction projects ``proposed'' by the Secretary of Agriculture or
the Under Secretary for Natural Resources and Environment are not
subject to the objection procedures of part 218. The respondent
questioned whether it means that a project is exempt from the objection
procedure if the Under Secretary merely proposes a project but does not
make the final decision.
Response: The Secretary or Under Secretary would be the responsible
official for any authorized hazardous fuel reduction projects they
propose and would, therefore, be the decisionmaker for those proposals.
Section 218.14 (was section 218.13 in interim final rule) Judicial
proceedings. This section describes when judicial proceedings are
appropriate.
Comment: A respondent commented that judicial review must not be
artificially limited, that the scope of judicial review should be for
Congress and the courts to decide, and that Congress did not create any
new limitations with the HFRA.
Response: For purposes of these regulations, section 105(c)(1) of
the HFRA provides that civil action challenging an authorized hazardous
fuel reduction project in Federal district court may only be brought if
the person has exhausted their administrative remedies by using the
administrative review process established in the Act and part 218. The
Act also specifies (105(c)(2)) that an issue may be considered during
the judicial review of an authorized hazardous fuel reduction project
only if the issue was raised in the administrative review processes
previously described. Exceptions to the requirement of exhausting the
administrative review process before seeking judicial review are
provided in the act at section 105(c)(3). Section 218.13 of the interim
final rule is fully consistent with the exhaustion requirements
established by Congress when it enacted the HFRA.
Section 218.15 (was section 218.14 in interim final rule)
Information collection requirements. This section explains that the
rule contains information collection requirements as defined in 5 CFR
part 1320 by specifying the information that objectors must supply in
an objection.
Comment: A respondent suggested that this section should also
contain a stipulation that all Agency records on any of these projects
must be immediately available for public inspection and investigation.
Response: Federal regulations at 5 CFR part 1320, Controlling
Paperwork Burdens on the Public, implement the provisions of the
Paperwork Reduction Act of 1995, as amended (44 U.S.C. 3501, et seq.)
concerning collections of information from the public. The regulation
is designed to reduce, minimize, and control the burden on the public
associated with public information collections. The Office of
Management and Budget (OMB) approves qualifying collections of
information from the public, and the purpose of section 218.15 is
simply to disclose that the information collection requirements
associated with filing objections are subject to the requirements of 5
CFR part 1320 and have been assigned a control number by OMB.
The availability to the public of records associated with the
planning and analysis of HFRA-authorized projects are governed by the
requirements of the NEPA regulations (40 CFR parts 1500-1508), these
regulations (36 CFR part 218), and the Freedom of Information Act.
Section 218.16 (was section 218.15 in interim final rule)
Applicability and effective date. This section sets out the effective
date of this final rule. There were no comments on this section.
Regulatory Certifications
Regulatory Impact
This final rule has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. It has been
determined that this is not a significant rule. This final rule will
not have an annual effect of $100 million or more on the economy nor
adversely affect productivity, competition, jobs, the environment,
public health or safety, nor State or local governments. This final
rule will not interfere with an action taken or planned by another
agency nor raise new legal or policy issues. Finally, this action will
not alter the budgetary
[[Page 53712]]
impact of entitlements, grants, user fees, or loan programs, or the
rights and obligations of recipients of such programs.
Moreover, this final rule has been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been
determined that this action will not have a significant economic impact
on a substantial number of small entities as defined by that act.
Therefore, a regulatory flexibility analysis is not required for this
final rule.
Environmental Impacts
This final rule establishes a predecisional administrative review
process for authorized hazardous fuel reduction projects on National
Forest System lands pursuant to section 105 of the Healthy Forests
Restoration Act of 2003. Section 31.1b of Forest Service Handbook
1909.15 (57 FR 43168; September 18, 1992) excludes from documentation
in an EA or EIS ``rules, regulations, or policies to establish Service-
wide administrative procedures, program processes, or instruction.''
This final rule clearly falls within this category of actions, and no
extraordinary circumstances exist that would require preparation of an
EA or an EIS.
Energy Effects
This final rule has been reviewed under Executive Order 13211 of
May 18, 2001, ``Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use.'' It has been determined
that this rule does not constitute a significant energy action as
defined in the Executive order.
Controlling Paperwork Burdens on the Public
This final rule represents an information collection requirement as
defined in 5 CFR part 1320, Controlling Paperwork Burdens on the
Public. In accordance with those rules and the Paperwork Reduction Act
of 1995, as amended (44 U.S.C. 3501, et seq.), the Forest Service was
granted approval from the Office of Management and Budget (OMB) on
December 18, 2003, for the new information collection required by the
interim final rule. That approval has been extended twice, most
recently on December 28, 2007. The current approval expires on December
31, 2010. The information to be collected from those who choose to
participate in the predecisional administrative review process for
hazardous fuel reduction projects authorized under the HFRA is the
minimum needed for the reviewing officer to make an informed decision
on an objection filed under the HFRA.
Federalism
The Agency has considered this final rule under the requirements of
Executive Order 13132, Federalism, and Executive Order 12875,
Government Partnerships. The Agency has made a preliminary assessment
that the final rule conforms with the federalism principles set out in
these Executive orders; would not impose any compliance costs on the
States; and would not have substantial direct effects on the States, on
the relationship between the national Government and the States, or on
the distribution of power and responsibilities among the various levels
of government. Comments received on the interim final rule were
considered, and the Agency determined that no additional consultation
was needed with State and local governments prior to adopting the final
rule.
Consultation and Coordination With Indian Tribal Governments
This final rule does not have Tribal implications as defined in
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, and, therefore, advance consultation with tribes is not
required.
No Takings Implications
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12630. It has been determined
that the final rule does not pose the risk of a taking of private
property.
Civil Justice Reform
This final rule has been reviewed under Executive Order 12988 on
civil justice reform. After adoption of this final rule, (1) all State
and local laws and regulations that conflict with this final rule or
that impede its full implementation will be preempted; (2) no
retroactive effect will be given to this final rule; and (3) it will
not require administrative proceedings before parties may file suit in
court challenging its provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), which the President signed into law on March 22,
1995, the Agency has assessed the effects of this final rule on State,
local, and Tribal governments and the private sector. This final rule
does not compel the expenditure of $100 million or more by any State,
local, or Tribal governments or anyone in the private sector.
Therefore, a statement under section 202 of the act is not required.
List of Subjects
36 CFR Part 215
Administrative practice and procedure, National forests.
36 CFR Part 218
Administrative practice and procedure, National forests.
0
Therefore, for the reasons set forth in the preamble, the Forest
Service adopts as final the interim final rule published at 69 FR 1529,
January 9, 2004, with the following changes:
PART 215--NOTICE, COMMENT, AND APPEAL PROCEDURES FOR NATIONAL
FOREST SYSTEM PROJECTS AND ACTIVITIES
0
1. The authority citation for part 215 continues to read as follows:
Authority: 16 U.S.C. 472, 551; sec. 322, Public Law 102-381
(Appeals Reform Act), 106 Stat. 1419 (16 U.S.C. 1612 note).
0
2. Amended Sec. 215.3 by revising paragraph (a) to read as follows:
Sec. 215.3 Proposed actions subject to legal notice and opportunity
to comment.
* * * * *
(a) Proposed projects and activities implementing land management
plans (Sec. 215.2) for which an environmental assessment (EA) is
prepared, except hazardous fuel reduction projects conducted under
provisions of the Healthy Forests Restoration Act (HFRA), as set out at
part 218, subpart A, of this title.
* * * * *
PART 218--PREDECISIONAL ADMINISTRATIVE REVIEW PROCESSES
0
3. The authority citation for part 218 continues to read as follows:
Authority: Public Law 108-148, 117 Stat. 1887 (Healthy Forests
Restoration Act of 2003).
0
4. Revise subpart A to part 218 to read as follows:
Subpart A--Predecisional Administrative Review Process for
Hazardous Fuel Reduction Projects Authorized by the Healthy Forests
Restoration Act of 2003
Sec.
218.1 Purpose and scope.
218.2 Definitions.
218.3 Authorized hazardous fuel reduction projects subject to
objection.
[[Page 53713]]
218.4 Authorized hazardous fuel reduction projects not subject to
objection.
218.5 Giving notice of proposed authorized hazardous fuel reduction
projects subject to objection.
218.6 Reviewing officer.
218.7 Who may file an objection.
218.8 Filing an objection.
218.9 Objections set aside from review.
218.10 Objection time periods and process.
218.11 Resolution of objections.
218.12 Timing of authorized hazardous fuel reduction project
decision.
218.13 Secretary's authority.
218.14 Judicial proceedings.
218.15 Information collection requirements.
218.16 Applicability and effective date.
Sec. 218.1 Purpose and scope.
This subpart establishes a predecisional administrative review
(hereinafter referred to as ``objection'') process for proposed
authorized hazardous fuel reduction projects as defined in the Healthy
Forests Restoration Act of 2003 (HFRA). The objection process is the
sole means by which administrative review of a proposed authorized
hazardous fuel reduction project on National Forest System land may be
sought. This subpart identifies who may file objections to those
proposed authorized hazardous fuel reduction projects, the
responsibilities of the participants in an objection, and the
procedures that apply for review of the objection.
Sec. 218.2 Definitions.
Address: An individual's or organization's current physical mailing
address. An e-mail address is not sufficient.
Authorized hazardous fuel reduction project: A hazardous fuel
reduction project authorized by the Healthy Forests Restoration Act of
2003 (HFRA).
Comments: Specific written comments related to a proposed
authorized hazardous fuel reduction project pursuant to the HFRA.
Decision notice (DN): A concise written record of a responsible
official's decision based on an environmental assessment and a finding
of no significant impact (FONSI) (40 CFR 1508.13; Forest Service
Handbook (FSH) 1909.15, chapter 40).
Environmental assessment (EA): A public document that provides
sufficient evidence and analysis for determining whether to prepare an
environmental impact statement (EIS) or a finding of no significant
impact (FONSI), aids an agency's compliance with the National
Environmental Policy Act (NEPA) when no EIS is necessary, and
facilitates preparation of a statement when one is necessary (40 CFR
1508.9; FSH 1909.15, Chapter 40).
Environmental impact statement (EIS): A detailed written statement
as required by section 102(2)(C) of the National Environmental Policy
Act (NEPA) of 1969 (40 CFR 1508.11; FSH 1909.15, Chapter 20).
Forest Service line officer: A Forest Service official who serves
in a direct line of command from the Chief and who has the delegated
authority to make and execute decisions approving hazardous fuel
reduction projects subject to this subpart.
Lead objector: For an objection submitted with multiple individuals
and/or organizations listed, the individual or organization identified
to represent all other objectors for the purposes of communication,
written or otherwise, regarding the objection.
Name: The first and last name of an individual or the name of an
organization. An electronic username is insufficient for identification
of an individual or organization.
National Forest System land: All lands, water, or interests therein
administered by the Forest Service (Sec. 251.51).
Newspaper(s) of record: Those principal newspapers of general
circulation annually identified in a list and published in the Federal
Register by each regional forester to be used for publishing notices of
projects and activities implementing land management plans.
Objection: The written document filed with a reviewing officer by
an individual or organization seeking predecisional administrative
review of a proposed authorized hazardous fuel reduction project as
defined in the HFRA.
Objection period: The 30-calendar-day period following publication
of the legal notice in the newspaper of record of an environmental
assessment (EA) or final environmental impact statement (EIS) for a
proposed authorized hazardous fuel reduction project during which an
objection may be filed with the reviewing officer. When the Chief is
the responsible official the objection period begins following
publication of a notice in the Federal Register.
Objection process: Those procedures established for predecisional
administrative review of proposed authorized hazardous fuel reduction
projects subject to the HFRA.
Objector: An individual or organization filing an objection who
submitted comments specific to the proposed authorized hazardous fuel
reduction project during scoping or other opportunity for public
comment as described in the HFRA. The use of the term ``objector''
applies to all persons who meet eligibility requirements associated
with the filed objection (Sec. 218.7(a)).
Record of decision (ROD): A document signed by a responsible
official recording a decision that was preceded by preparation of an
environmental impact statement (EIS) (40 CFR 1505.2; FSH 1909.15,
Chapter 20).
Responsible official: The Forest Service employee who has the
delegated authority to make and implement a decision approving proposed
authorized hazardous fuel reduction projects subject to this subpart.
Reviewing officer: The United States Department of Agriculture
(USDA) or Forest Service official having the delegated authority and
responsibility to review an objection filed under this subpart. The
reviewing officer is the next higher level supervisor of the
responsible official.
Sec. 218.3 Authorized hazardous fuel reduction projects subject to
objection.
(a) Only authorized hazardous fuel reduction projects as defined by
the HFRA, section 101(2), occurring on National Forest System lands
that have been analyzed in an EA or EIS are subject to this subpart.
Authorized hazardous fuel reduction projects processed under the
provisions of the HFRA are not subject to the notice, comment, and
appeal provisions set forth in part 215 of this chapter.
(b) When authorized hazardous fuel reduction projects are approved
contemporaneously with a plan amendment that applies only to that
project, the objection process of this part applies to both the plan
amendment and the project.
Sec. 218.4 Authorized hazardous fuel reduction projects not subject
to objection.
Projects are not subject to objection when no comments (Sec.
218.2) are received during the opportunity for public comment (Sec.
218.7(a)). The responsible official must issue an explanation with the
record of decision (ROD) or decision notice (DN) that the project was
not subject to objection.
Sec. 218.5 Giving notice of proposed authorized hazardous fuel
reduction projects subject to objection.
(a) In addition to the notification required in paragraph (c) of
this section, the responsible official should disclose during scoping
and in the EA or EIS that the project is authorized under the HFRA and
will therefore be subject to the objection procedure at 36 CFR 218, in
lieu of the appeal procedure at 36 CFR 215.
[[Page 53714]]
(b) The responsible official must promptly distribute the final EIS
or the EA to those who have requested the document or are eligible to
file an objection in accordance with Sec. 218.7(a).
(c) Upon completion and distribution mailing of the final EIS or
EA, legal notice of the opportunity to object to a proposed authorized
hazardous fuel reduction project must be published in the applicable
newspaper of record identified (218.2) for each National Forest System
unit. When the Chief is the responsible official, notice must be
published in the Federal Register. The legal notice or Federal Register
notice must
(1) Include the name of the proposed authorized hazardous fuel
reduction project, a concise description of the preferred alternative
and any proposed land management plan amendments, name and title of the
responsible official, name of the forest and/or district on which the
proposed authorized hazardous fuel reduction project will occur,
instructions for obtaining a copy of the final EIS or EA, and
instructions on how to obtain additional information on the proposed
authorized hazardous fuel reduction project.
(2) State that the proposed authorized hazardous fuel reduction
project is subject to the objection process pursuant to 36 CFR part
218, subpart A, and include the following:
(i) Name and address of the reviewing officer with whom an
objection is to be filed. The notice must specify a street, postal,
fax, and e-mail address, the acceptable format(s) for objections filed
electronically, and the reviewing officer's office business hours for
those filing hand-delivered objections.
(ii) A statement that objections will be accepted only from those
who have previously submitted written comments specific to the proposed
authorized hazardous fuel reduction project during scoping or other
opportunity for public comment in accordance with Sec. 218.7(a).
(iii) A statement that the publication date of the legal notice in
the newspaper of record or Federal Register notice is the exclusive
means for calculating the time to file an objection (Sec. 218.10(a)),
and that those wishing to object should not rely upon dates or
timeframe information provided by any other source. A specific date
must not be included in the notice.
(iv) A statement that an objection, including attachments, must be
filed (regular mail, fax, e-mail, hand-delivery, express delivery, or
messenger service) with the appropriate reviewing officer (Sec. 218.8)
within 30 days of the date of publication of the legal notice for the
objection process. It should also be stated that incorporation of
documents by reference is permitted only as provided for at Sec.
218.8(b).
(v) A statement describing the minimum content requirements of an
objection (Sec. 218.8(c)).
(vi) A statement that the proposed authorized hazardous fuel
reduction project is not subject to the notice, comment, and appeal
procedures found at part 215 of this chapter (Sec. 218.3).
(d) Publication. Through notice published annually in the Federal
Register, each regional forester must advise the public of the
newspaper(s) of record utilized for publishing legal notice required by
this subpart.
Sec. 218.6 Reviewing officer.
The reviewing officer determines procedures to be used for
processing objections when the procedures are not specifically
described in this subpart, including such procedures as needed to be
compatible to the extent practicable, with the administrative review
processes of other Federal agencies, for authorized hazardous fuel
reduction projects proposed jointly with other agencies. Such
determinations are not subject to further administrative review.
Sec. 218.7 Who may file an objection.
(a) Individuals and organizations who have submitted specific
written comments related to the proposed authorized hazardous fuel
reduction project during the opportunity for public comment provided
during preparation of an EA or EIS for the proposed authorized
hazardous fuel reduction project as characterized in section 104(g) of
the HFRA may file an objection. For proposed authorized hazardous fuel
reduction projects described in a draft EIS, such opportunity for
public comment will be fulfilled during scoping, by the comment period
on the draft EIS in accordance with procedures in 40 CFR 1506.10, and
any other periods public comment is specifically requested. For
proposed authorized hazardous fuel reduction projects described in an
EA, such opportunity for public comment will be fulfilled during
scoping or any other periods public comment is specifically requested.
(b) Comments received from an authorized representative(s) of an
organization are considered those of the organization only. Individual
members of that organization do not meet objection eligibility
requirements solely on the basis of membership in an organization. A
member or an individual must submit comments independently in order to
be eligible to file an objection in an individual capacity.
(c) When an objection lists multiple individuals or organizations,
each individual or organization must meet the requirements of paragraph
(a) of this section. Individuals or organizations listed on an
objection that do not meet eligibility requirements must not be
considered objectors. Objections from individuals or organizations that
do not meet the requirements of paragraph (a) must not be accepted.
This must be documented in the objection record.
(d) Federal agencies may not file objections.
(e) Federal employees who otherwise meet the requirements of this
subpart for filing objections in a non-official capacity must comply
with Federal conflict of interest statutes at 18 U.S.C. 202-209 and
with employee ethics requirements at 5 CFR part 2635. Specifically,
employees must not be on official duty nor use Government property or
equipment in the preparation or filing of an objection. Further,
employees must not incorporate information unavailable to the public,
such as Federal agency documents that are exempt from disclosure under
the Freedom of Information Act (5 U.S.C. 552(b)).
Sec. 218.8 Filing an objection.
(a) Objections must be filed with the reviewing officer in writing.
All objections must be open to public inspection during the objection
process.
(b) Incorporation of documents by reference is not allowed, except
for the following list of items which may be provided by including
date, page, and section of the cited document. All other documents must
be included with the objection.
(1) All or any part of a Federal law or regulation,
(2) Forest Service directives and land management plans,
(3) Documents referenced by the Forest Service in the proposed HFRA
project subject to objection,
(4) Comments previously provided to the Forest Service by the
objector during the proposed HFRA project comment period.
(c) At a minimum, an objection must include the following:
(1) Objector's name and address (Sec. 218.2), with a telephone
number, if available;
(2) Signature or other verification of authorship upon request (a
scanned signature for electronic mail may be filed with the objection);
(3) When multiple names are listed on an objection, identification
of the lead objector (Sec. 218.2). Verification of the
[[Page 53715]]
identity of the lead objector must be provided upon request;
(4) The name of the proposed authorized hazardous fuel reduction
project, the name and title of the responsible official, and the
name(s) of the national forest(s) and/or ranger district(s) on which
the proposed authorized hazardous fuel reduction project will be
implemented; and,
(5) Sufficient narrative description of those aspects of the
proposed authorized hazardous fuel reduction project addressed by the
objection, specific issues related to the proposed authorized hazardous
fuel reduction project, and suggested remedies that would resolve the
objection.
Sec. 218.9 Objections set aside from review.
(a) The reviewing officer must set aside and not review an
objection when one or more of the following applies:
(1) Objections are not filed in a timely manner (Sec. Sec.
218.5(c)(2)(iv), 218.10(c)).
(2) The proposed project is not subject to the objection procedures
of this subpart (Sec. Sec. 218.3, 218.4).
(3) The individual or organization did not submit written comments
during scoping or other opportunity for public comment (Sec.
218.7(a)).
(4) The objection does not provide sufficient information as
required by Sec. 218.7(b) through (d) for the reviewing officer to
review.
(5) The objector withdraws the objection.
(6) An objector's identity is not provided or cannot be determined
from the signature (written or electronically scanned) and a reasonable
means of contact is not provided (Sec. 218.8(c)(2)).
(7) The objection is illegible for any reason, including
submissions in an electronic format different from that specified in
the legal notice.
(b) The reviewing officer must give written notice to the objector
and the responsible official when an objection is set aside from review
and must state the reasons for not reviewing the objection. If the
objection is set aside from review for reasons of illegibility or lack
of a means of contact, the reasons must be documented in the project
record.
Sec. 218.10 Objection time periods and process.
(a) Time to file an objection. Written objections, including any
attachments, must be filed with the reviewing officer within 30 days
following the publication date of the legal notice of the EA or final
EIS in the newspaper of record or the publication date of the notice in
the Federal Register when the Chief is the responsible official (Sec.
218.5(c)). It is the responsibility of objectors to ensure that their
objection is received in a timely manner.
(b) Computation of time periods. (1) All time periods are computed
using calendar days, including Saturdays, Sundays, and Federal
holidays. However, when the time period expires on a Saturday, Sunday,
or Federal holiday, the time is extended to the end of the next Federal
working day as stated in the legal notice or to the end of the calendar
day (11:59 p.m. in the time zone of the receiving office) for
objections filed by electronic means such as e-mail or facsimile
machine.
(2) The day after publication of the legal notice for this subpart
of the EA or final EIS in the newspaper of record or Federal Register
(Sec. 218.5(c)) is the first day of the objection-filing period.
(3) The publication date of the legal notice of the EA or final EIS
in the newspaper of record or, when the Chief is the responsible
official, the Federal Register, is the exclusive means for calculating
the time to file an objection. Objectors may not rely on dates or
timeframe information provided by any other source.
(c) Evidence of timely filing. It is the objector's responsibility
to ensure timely filing of an objection. Timeliness must be determined
by the following indicators:
(1) The date of the U.S. Postal Service postmark;
(2) The electronically generated date and time for e-mail and
facsimiles;
(3) The shipping date for delivery by private carrier; or
(4) The official agency date stamp showing receipt of hand
delivery.
(d) Extensions. Time extensions are not permitted.
(e) Other timeframes. The reviewing officer must issue a written
response to the objector(s) concerning their objection(s) within 30
days following the end of the objection-filing period.
Sec. 218.11 Resolution of objections.
(a) Meetings. Prior to the issuance of the reviewing officer's
written response, either the reviewing officer or the objector may
request to meet to discuss issues raised in the objection and potential
resolution. The reviewing officer has the discretion to determine
whether or not adequate time remains in the review period to make a
meeting with the objector practical.'' All meetings are open to the
public.
(b) Response to objections. (1) A written response must set forth
the reasons for the response, but need not be a point-by-point response
and may contain instructions to the responsible official, if necessary.
In cases involving more than one objection to a proposed authorized
hazardous fuel reduction project, the reviewing officer may consolidate
objections and issue one or more responses.
(2) There must be no further review from any other Forest Service
or USDA official of the reviewing officer's written response to an
objection.
Sec. 218.12 Timing of authorized hazardous fuel reduction project
decision.
(a) The responsible official may not issue a ROD or DN concerning
an authorized hazardous fuel reduction project subject to the
provisions of this subpart until the reviewing officer has responded to
all pending objections.
(b) When no objection is filed within the 30-day time period, the
reviewing officer must notify the responsible official and approval of
the authorized hazardous fuel reduction project in a ROD in accordance
with 40 CFR 1506.10, or DN may occur on, but not before, the fifth
business day following the end of the objection-filing period.
Sec. 218.13 Secretary's authority.
(a) Nothing in this section shall restrict the Secretary of
Agriculture from exercising any statutory authority regarding the
protection, management, or administration of National Forest System
lands.
(b) Authorized hazardous fuel reduction projects proposed by the
Secretary of Agriculture or the Under Secretary, Natural Resources and
Environment, are not subject to the procedures set forth in this
subpart. A decision by the Secretary or Under Secretary constitutes the
final administrative determination of the Department of Agriculture.
Sec. 218.14 Judicial proceedings.
The objection process set forth in this subpart fully implements
Congress' design for a predecisional administrative review process for
proposed hazardous fuel reduction projects authorized by the HFRA.
These procedures present a full and fair opportunity for concerns to be
raised and considered on a project-by-project basis. Individuals and
groups must structure their participation so as to alert the local
agency officials making particular land management decisions of their
positions and contentions. Further, any filing for Federal judicial
review of an authorized hazardous fuel reduction project is premature
and inappropriate unless the plaintiff has submitted specific written
comments relating to the proposed action during scoping or other
opportunity for public comment as prescribed by the HFRA, and the
plaintiff has challenged the
[[Page 53716]]
authorized hazardous fuel reduction project by exhausting the
administrative review process set out in this subpart. Further,
judicial review of hazardous fuel reduction projects that are subject
to these procedures is strictly limited to those issues raised by the
plaintiff's submission during the objection process, except in
exceptional circumstances such as where significant new information
bearing on a specific claim only becomes available after conclusion of
the administrative review.
Sec. 218.15 Information collection requirements.
The rules of this subpart specify the information that objectors
must provide in an objection to a proposed authorized hazardous fuel
reduction project as defined in the HFRA (Sec. 218.8). As such, these
rules contain information collection requirements as defined in 5 CFR
part 1320. These information requirements are assigned OMB Control
Number 0596-0172.
Sec. 218.16 Applicability and effective date.
The provisions of this subpart are effective as of October 17, 2008
and apply to all proposed authorized hazardous fuel reduction projects
conducted under the provisions of the HFRA for which scoping begins on
or after October 17, 2008.
Dated: September 10, 2008.
Mark Rey,
Under Secretary, NRE.
[FR Doc. E8-21751 Filed 9-16-08; 8:45 am]
BILLING CODE 3410-11-P