I 112th CONGRESS 1st Session H. R. 2209 IN THE HOUSE OF REPRESENTATIVES June 16, 2011 Mr. Benishek introduced the following bill; which was referred to the Committee on Agriculture A BILL To replace the current Forest Service administrative appeals process with a pre-decisional administrative review process modeled after the successful approach used in the Healthy Forests Restoration Act of 2003, and for other purposes.

1.

Pre-decisional administrative review process for Forest Service actions implementing land and resource management plans

(a)

Replacement of current administrative appeals process

Section 322 of Public Law 102–381 (16 U.S.C. 1612 note) is amended by striking subsections (c), (d), and (e) and inserting the following new subsections: (c)

Pre-Decisional administrative review process for certain Forest Service actions

(1)

Establishment as sole means for administrative review

The Secretary shall establish by regulation a pre-decisional administrative review process that will serve as the sole means by which a person can seek administrative review regarding proposed actions referred to in subsection (a). (2)

Review period

The pre-decisional administrative review process for a proposed action referred to in subsection (a) shall occur during the period— (A)beginning after the completion of the environmental assessment or environmental impact statement prepared for the action; and (B)ending not later than the date of the issuance of the final decision approving the action. (3)

Eligibility

To be eligible to participate in the pre-decisional administrative review process for a proposed action referred to in subsection (a), a person shall submit to the Secretary, during scoping or the public comment period for the draft environmental analysis for the action, specific written comments that relate to the proposed action. (4)

Notice of proposed decision

Following the conclusion of the pre-decisional administrative review process for a proposed action referred to in subsection (a), the Secretary shall provide notice of, and distribute, the proposed decision along with the final environmental assessment or environmental impact statement. (d)

Emergency situations

(1)

Exemption from pre-decisional administrative review process

Subject to paragraphs (2) and (3), if the Chief of the Forest Service determines that an emergency situation exists for which immediate implementation of a proposed action referred to in subsection (a) is necessary, the proposed action shall not be subject the pre-decisional administrative review process in subsection (c). (2)

Notice; post-decisional objection process

In the case of an action exempted under paragraph (1), the Forest Service shall— (A)provide notice of the final decision for the proposed action; and (B)provide for an expedited post-decisional review process. (3)

Implementation

The Forest Service may implement an action exempted under paragraph (1) immediately after notice is provided under paragraph (2)(A) and continue such implementation during the post-decisional administrative review process. (e)

Efforts To expedite judicial review

Subsections (b) and (c)(3) of section 106 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6516) shall apply with respect to— (1)the judicial review of an action challenging an action referred to in subsection (a); and (2)any request for an injunction regarding such an action. (f)

Relationship to other authorities

This section does not apply to— (1)an authorized hazardous fuel reduction project under title I of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6501 et seq.), which has its own special administrative review process under section 105 of such Act (16 U.S.C. 6515); and (2)a proposed action referred to in subsection (a) for which a categorically exclusion is provided. (g)

Short title

This section may be cited as the Forest Service Administrative Review Act. . (b)

Technical corrections

Section 322 of Public Law 102–381 (16 U.S.C. 1612 note) is further amended— (1)in subsection (a), by striking (16 U.S.C. 1601 et seq.) and inserting (16 U.S.C. 1600 et seq.); and (2)in subsection (b)— (A)by striking Secretary both places it appears and inserting Forest Service; and (B)by striking the comma at the end of paragraph (1)(A). (c)

Effective date and interim process

(1)

Effective date

Subject to paragraph (3), the pre-decisional administrative review process required by subsection (c) of section 322 of Public Law 102–381 (16 U.S.C. 1612 note), as added by subsection (a), shall take effect upon the issuance of final regulations by the Secretary of Agriculture establishing the process. (2)

Interim process

Pending issuance of the final regulations, the Secretary shall apply— (A)the regulations in part 215, title 36, Code of Federal Regulations that implement the notice and comment provisions in subsections (a) and (b) of section 322 of Public Law 102–381; and (B)the regulations in part 218, title 36, Code of Federal Regulations, to provide the pre-decisional administrative review process under subsection (c) of section 322 of Public Law 102–381, except that subsection (c)(5) of such section shall apply to require notice and distribution of proposed decisions. (3)

Transition

Upon issuance of the final regulations, the Secretary shall no longer apply the regulations in part 215, title 36, Code of Federal Regulations, that implement subsections (c), (d), and (e) of section 322 of Public Law 102–381, as in effect on the day before the date of enactment of this Act, except with respect to a decision which was, or could have been, appealed under such part on the day before the date of the issuance of the final regulations.