[Congressional Record Volume 164, Number 108 (Wednesday, June 27, 2018)]
[Senate]
[Pages S4659-S4660]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 3285. Mr. DAINES submitted an amendment intended to be proposed by
him to the bill H.R. 2, to provide for the reform and continuation of
agricultural and other programs of the Department of Agriculture
through fiscal year 2023, and for other purposes; which was ordered to
lie on the table; as follows:
At the end of part II of subtitle F of title VIII, add the
following:
SEC. 86___. ALTERNATIVE DISPUTE RESOLUTION PILOT PROGRAM.
(a) Definitions.--In this section:
(1) Participant.--The term ``participant'' means an
individual or entity that files an objection or scoping
comments on a draft environmental document with respect to a
project that is subject to an objection at the project level
under part 218 of title 36, Code of Federal Regulations (or
successor regulations).
(2) Pilot program.--The term ``pilot program'' means the
pilot program established under subsection (b).
(3) Project.--The term ``project'' means a project
described in subsection (c).
(4) Secretary.--The term ``Secretary'' means the Secretary,
acting through the Chief of the Forest Service.
(b) Arbitration Pilot Program.--Not later than 180 days
after the date of enactment of this Act, the Secretary shall
establish within Region 1 of the Forest Service an
arbitration pilot program as an alternative dispute
resolution process in lieu of judicial review for projects
described in subsection (c).
(c) Description of Projects.--
(1) In general.--The Secretary, at the sole discretion of
the Secretary, may designate for arbitration projects that--
(A)(i) are developed through a collaborative process
(within the meaning of section 603(b)(1)(C) of the Healthy
Forest Restoration Act of 2003 (16 U.S.C. 6591b(b)(1)(C)));
(ii) are carried out under the Collaborative Forest
Landscape Restoration Program established under section 4003
of the Omnibus Public Land Management Act of 2009 (16 U.S.C.
7303); or
(iii) are identified in a community wildfire protection
plan (as defined in section 101 of the Healthy Forests
Restoration Act of 2003 (16 U.S.C. 6511));
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(B) have as a purpose--
(i) hazardous fuels reduction; or
(ii) mitigation of insect or disease infestation; and
(C) are located, in whole or in part, in a wildland-urban
interface (as defined in section 101 of the Healthy Forests
Restoration Act of 2003 (16 U.S.C. 6511)).
(2) Inclusion.--In designating projects for arbitration,
the Secretary may include projects that receive categorical
exclusions for purposes of the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.).
(d) Limitation on Number of Projects.--The Secretary may
not designate for arbitration under the pilot program more
than 2 projects per calendar year.
(e) Arbitrators.--
(1) Appointment.--The Secretary shall develop and publish a
list of not fewer than 15 individuals eligible to serve as
arbitrators for the pilot program.
(2) Qualifications.--To be eligible to serve as an
arbitrator under this subsection, an individual shall be--
(A) certified by--
(i) the American Arbitration Association; or
(ii) a State arbitration program; or
(B) a fully retired Federal or State judge.
(f) Initiation of Arbitration.--
(1) In general.--Not later than 7 days after the date on
which the Secretary issues the final decision with respect to
a project, the Secretary shall--
(A) notify each applicable participant and the Clerk of the
United States District Court for the district in which the
project is located that the project has been designated for
arbitration in accordance with this section; and
(B) include in the decision document a statement that the
project has been designated for arbitration.
(2) Initiation.--
(A) In general.--A participant may initiate arbitration
regarding a project that has been designated for arbitration
under this section in accordance with--
(i) sections 571 through 584 of title 5, United States
Code; and
(ii) this paragraph.
(B) Requirements.--A request to initiate arbitration under
subparagraph (A) shall--
(i) be filed not later than the date that is 30 days after
the date of the notification by the Secretary under paragraph
(1); and
(ii) include an alternative proposal for the applicable
project that describes each modification sought by the
participant with respect to the project.
(C) No judicial review.--A project for which arbitration is
initiated under subparagraph (A) shall not be subject to
judicial review.
(3) Compelled arbitration.--
(A) Motion to compel arbitration.--
(i) In general.--If a participant seeks judicial review of
a final decision with respect to a project, the Secretary may
file in the applicable court a motion to compel arbitration
in accordance with this section.
(ii) Fees and costs.--For any motion described in clause
(i) for which the Secretary is the prevailing party, the
applicable court shall award to the Secretary--
(I) court costs; and
(II) attorney's fees.
(B) Arbitration compelled by court.--If a participant seeks
judicial review of a project, the applicable court shall
compel arbitration in accordance with this section.
(g) Selection of Arbitrator.--For each arbitration
commenced under this section--
(1) the Secretary shall propose 3 arbitrators from the list
published under subsection (e)(1); and
(2) the applicable participant shall select 1 arbitrator
from the list of arbitrators proposed under paragraph (1).
(h) Responsibilities of Arbitrator.--
(1) In general.--An arbitrator selected under subsection
(e)--
(A) shall address all claims of each party seeking
arbitration with respect to a project under this section; but
(B) may consolidate into a single arbitration all requests
to initiate arbitration by all participants with respect to a
project.
(2) Selection of proposals.--An arbitrator shall make a
decision with respect to each applicable request for
initiation of arbitration under this section by--
(A) selecting the project, as approved by the Secretary;
(B) selecting an alternative proposal submitted by the
applicable participant; or
(C) rejecting both projects described in subparagraphs (A)
and (B).
(3) Limitations.--
(A) Administrative record.--The evidence before an
arbitrator under this subsection shall be limited solely to
the administrative record for the project.
(B) No modifications to proposals.--An arbitrator may not
modify any proposal contained in a request for initiation of
arbitration of a participant under this section.
(i) Intervention.--A party may intervene in an arbitration
under this section if, with respect to the project to which
the arbitration relates, the party--
(1) meets the requirements of Rule 24(a) of the Federal
Rules of Civil Procedure (or a successor rule); or
(2) participated in the applicable collaborative process
referred to in clause (i) or (ii) of subsection (c)(1)(A).
(j) Scope of Review.--In carrying out arbitration for a
project, the arbitrator shall set aside the agency action,
findings, and conclusions found to be arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law, within the meaning of section 706(2)(A) of title 5,
United States Code.
(k) Deadline for Completion of Arbitration.--Not later than
90 days after the date on which a request to initiate
arbitration is filed under subsection (f)(2), the arbitrator
shall make a decision with respect to the request to initiate
arbitration.
(l) Effect of Arbitration Decision.--A decision of an
arbitrator under this section--
(1) shall not be considered to be a major Federal action;
(2) shall be binding; and
(3) shall not be subject to judicial review, except as
provided in section 10(a) of title 9, United States Code.
(m) Administrative Costs.--
(1) In general.--The Secretary shall--
(A) be solely responsible for the professional fees of
arbitrators participating in the pilot program; and
(B) use funds made available to the Secretary and not
otherwise obligated to carry out subparagraph (A).
(2) Attorney's fees.--No arbitrator may award attorney's
fees in any arbitration brought under this section.
(n) Reports.--
(1) In general.--Not later than 1 year after the date on
which the pilot program is established, and annually
thereafter, the Secretary shall submit to the Committee on
Agriculture, Nutrition, and Forestry and the Committee on
Energy and Natural Resources of the Senate and the Committee
on Natural Resources of the House of Representatives, and
publish on the website of Region 1 of the Forest Service, a
report of not longer than 10 pages describing the
implementation of the pilot program for the applicable year,
including--
(A) the reasons for selecting certain projects for
arbitration;
(B) an evaluation of the arbitration process, including any
recommendations for improvements to the process;
(C) a description of the outcome of each arbitration; and
(D) a summary of the impacts of each outcome described in
subparagraph (C) on the timeline for implementation and
completion of the applicable project.
(2) GAO reviews and reports.--
(A) Initial review.--Not later than 2 years after the date
on which the pilot program is established, the Comptroller
General of the United States shall review the implementation
by the Secretary of the pilot program.
(B) Review on termination.--On termination of the pilot
program under subsection (o), the Comptroller General of the
United States shall review the implementation by the
Secretary of the pilot program.
(C) Report.--On completion of the review described in
subparagraph (A) or (B), the Comptroller General of the
United States shall submit to the Committee on Agriculture,
Nutrition, and Forestry and the Committee on Energy and
Natural Resources of the Senate and the Committee on Natural
Resources of the House of Representatives a report describing
the results of the applicable review.
(o) Termination.--The pilot program shall terminate on the
date that is 5 years after the date.
(p) Effect.--Nothing in this section affects the
responsibility of the Secretary to comply with--
(1) the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.); or
(2) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.).
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