[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Proposed Rules]
[Pages 40764-40772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19886]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 202

RIN 0790-AG31


Restoration Advisory Boards (RABs)

AGENCY: Department of Defense, Office of the Assistant Deputy Under 
Secretary of Defense (Environmental Cleanup), DoD.

ACTION: Proposed rule.

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SUMMARY: The Department of Defense (DoD) proposes and requests public 
comments on regulations regarding the characteristics, composition, 
funding, and establishment of Restoration Advisory Boards (RABs). DoD 
has proposed these regulations in response to section 324 of the 
National Defense

[[Page 40765]]

Authorization Act for Fiscal Year 1996 (Pub. L. 104-106) that amended 
section 2705 of title 10, United States Code, and requires the 
Secretary of Defense to prescribe regulations regarding RABs.
    The purpose of a RAB is to facilitate public participation in DoD 
environmental restoration activities at operating and closing DoD 
installations where local communities express interest in the program. 
The proposed regulations are based on DoD's current policies for 
establishing and operating RABs as well as DoD's experience in 
establishing RABs over the past two years.

DATES: Comments on this proposed rule must be submitted on or before 
November 4, 1996.

ADDRESSES: Comments on this proposal should be sent to the following 
address: Office of the Assistant Deputy Under Secretary of the Defense 
(Environmental Cleanup), 3400 Defense Pentagon, Washington, DC 20301-
3400. The public must send a written original, two copies, and whenever 
possible, a 3.5 inch computer disk containing comments in a common word 
processing format such as WordPerfect version 5.1. This will expedite 
DoD's response to comments and reduce the associated costs.

FOR FURTHER INFORMATION CONTACT:
Ms. Marcia Read, Office of the Assistant Deputy Under Secretary of 
Defense (Environmental Cleanup), (703) 697-9793.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Authority
II. Background
III. Summary of the Proposed Rule
    A. General Requirements
    B. Operating Requirements
    C. Administrative Support, Funding, and Reporting Requirements
IV. Section by Section Analysis of the Proposed Rule
    A. General Requirements
    1. Purpose, Scope, and Applicability
    a. Purpose and Scope of Responsibilities of RABs
    b. Applicability of Regulations to Existing RABs
    2. Criteria for Establishment
    a. Determining if Sufficient Interest Warrants Establishing a 
RAB
    b. Responsibility for Forming and Operating a RAB
    c. Converting Existing Technical Review Committees (TRCs) to 
RABs
    3. Notification of Formation of a RAB
    a. Public Notice and Outreach
    b. RAB Information Meeting
    4. Composition of a RAB
    a. Membership
    b. Government Representation
    c. Community Representation
    d. Roles and Responsibilities of Members
    B. Operating Requirements
    1. Creating a Mission Statement
    2. Selecting Co-Chairs
    3. Developing Operating Procedures
    4. Training RAB Members
    5. Conducting RAB Meetings
    C. Administrative Support, Funding, and Reporting Requirements
    1. Administrative Support and Eligible Expenses
    a. Administrative Support
    b. Eligible Administrative Expenses
    2. Funding
    3. Technical Assistance to Community Members
    4. Documenting and Reporting Activities and Expenses
V. Regulatory Analysis
    A. Regulatory Impact Analysis Pursuant to Executive Order 12866
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
VI. Unfunded Mandates

I. Authority

    These regulations are proposed under the authority of section 2705 
of title 10, United States Code, that was amended by section 324 of the 
National Defense Authorization Act for Fiscal Year 1996 (Pub. L. 104-
106).

II. Background

    The Defense Environmental Restoration Program (DERP) was 
established in 1984 to promote and coordinate efforts for the 
evaluation and cleanup of environmental contamination at operating and 
closing DoD installations and formerly used defense sites (FUDS). 
Policy direction and oversight of DERP is the responsibility of the 
Office of the Assistant Deputy Under Secretary of Defense 
(Environmental Cleanup). The DoD Components (Departments of Army, Navy, 
and Air Force, and the Defense Agencies) are responsible for program 
implementation.
    DoD recognizes the importance of public involvement at military 
installations and FUDS that require environmental restoration. DoD has 
developed policies to ensure that local communities are provided the 
opportunity as early as possible to obtain information about and 
provide input to the decisions regarding the environmental restoration 
activities at military installations. It is DoD policy to provide such 
opportunity through the establishment of RABs.
    DoD, as with all federal agencies, must comply with the statutory 
and regulatory requirements for community involvement found under the 
National Oil and Hazardous Substance Pollution Contingency Plan (NCP), 
the Comprehensive Environmental Response, Compensation, and Liability 
Act (CERCLA) (Pub. L. 96-510) as amended by the Superfund Amendments 
and Reauthorization Act (SARA) (Pub. L. 99-499), the Resource 
Conservation and Recovery Act (RCRA) (Pub. L. 94-550), National 
Environmental Policy Act (NEPA) (Pub. L. 91-190), and other applicable 
federal, state and local environmental laws and regulations. Section 
211 of SARA (10 USC 2705(c)) and Executive Order 12580, entitled 
``Superfund Implementation,'' require DoD, where possible and 
practical, to establish technical review committees (TRC) for reviewing 
technical documents and discussing progress in implementing and 
completing restoration activities.
    Over the past several years, DoD has participated as a member of 
the Federal Facilities Environmental Restoration Dialogue Committee 
(FFERDC). The FFERDC is a committee chartered under the Federal 
Advisory Committee (FACA). The committee includes stakeholders--
representatives of federal, state, tribal, and local agencies, and of 
environmental, community, labor, and environmental justice 
organizations. The FFERDC develops consensus policy recommendations for 
improving decisions about environmental restoration at federal 
facilities. In February 1993, the FFERDC issued the ``Interim Report of 
the FFERDC: Recommendations for Improving the Federal Facilities 
Environmental Restoration Decision-Making and Priority-Setting 
Processes''. In that report, the FFERDC recommended that: (1) Federal 
agencies should be more proactive in providing information about 
restoration activities to stakeholders, and (2) citizen advisory boards 
should be established to provide advice to government agencies that 
conduct and regulate restoration at federal facilities. DoD carefully 
considered the recommendations of the FFERDC and, in response, 
strengthened its community involvement efforts including the RAB 
initiative under its environmental restoration program.
    Following the release of the FFERDC Interim Report in 1993, the 
FFERDC expanded its membership to include representatives from the 
military services, local governments, and environmental justice 
organizations. In April 1996, the FFERDC issued its Final Report which 
includes chapters on community involvement and advisory boards. The 
Final Report affirms the value of RABs as a method for involving the 
public in the environmental restoration decision-making process and 
provides recommendations for establishing and implementing successful 
RABs.

[[Page 40766]]

    In 1993, President Clinton announced a five-part plan to speed the 
economic recovery of communities in which bases are scheduled to close. 
Part of the Fast-Track Cleanup Program, which sprang from the 
President's plan, emphasized the early community involvement in the 
environmental restoration process as an important element of the 
program. On September 9, 1993, the Deputy Secretary of Defense issued a 
memorandum that outlined the policies for implementation of the Fast-
Track Cleanup Program. One of the guidances called for the 
establishment of RABs at closing installations where property was 
available for transfer to communities for reuse. The RAB initiative, 
subsequently applied to operational installations, gives an opportunity 
for citizens living near military installations to obtain information 
about, and provide input to, the environmental restoration program.
    DoD believes that working in partnership with local communities and 
addressing the concerns of those communities early in the restoration 
process will enhance its efforts under, and increase credibility of, 
the environmental restoration program. DoD remains committed to 
involving communities neighboring its installations in environmental 
restoration decisions that may affect human health and the environment. 
RABs have become a significant component of DoD's efforts to increase 
community involvement in DoD's environmental restoration program. RABs 
continuously provide a forum through which members of affected 
communities can provide input to an installation's ongoing 
environmental restoration activities.
    On September 27, 1994, DoD and EPA jointly issued guidelines for 
the formation and operation of RABs (``Restoration Advisory Board 
Implementation Guidelines''). The guidelines describe how to implement 
the DoD RAB policy and identify the role each stakeholder can play in 
the RAB. The guidelines also state that existing TRCs or similar groups 
may be expanded or modified to become RABs rather than an installation 
creating a separate committee because RABs are designed to fulfill the 
statutory requirements for TRCs.
    As of September 30, 1995, more than 200 RABs had been formed at 
more than 230 operating and closing installations that have restoration 
programs. It is important to note that the RAB is not a replacement for 
other types of community outreach and participation activities required 
by law, regulation, or policy.
    In section 326(a) of the National Defense Authorization Act for 
Fiscal Year 1995 (Pub. L. 103-337, October 5, 1994), Congress directed 
that section 2705 of title 10, United States Code (CERCLA), be amended 
in the following manner, (``1) In lieu of establishing a technical 
review committee under subsection (c), the Secretary may permit 
establishment of a restoration advisory board in connection with any 
installation (or group of nearby installations) where the Secretary is 
planning or implementing environmental restoration activities.'' Thus, 
Congress granted DoD the authority to establish RABs instead of TRCs at 
installations undergoing environmental restoration.
    On February 10, 1996, the President signed into law the National 
Defense Authorization Act for Fiscal Year 1996 (Pub. L. 104-106) which 
contained several provisions addressing the establishment and operation 
of RABs. Section 324(a) of Pub. L. 104-106 amended section 2705 of 
title 10, United States Code, requiring the Secretary of Defense to 
``prescribe regulations regarding the establishment, characteristics, 
composition, and funding of restoration advisory boards'' (amended 
section 2705(d)(2)(A)). Section 324(a) of Pub. L. 104-106 also stated 
that DoD's issuance of regulations shall not be a precondition to the 
establishment of RABs (amended section 2705(d)(2)(B)). Section 324(b) 
of Pub. L. 104-106 authorized DoD to enable the installation to pay for 
routine administrative expenses of a RAB, as well as allowing RABs or 
TRCs to obtain technical assistance for interpreting scientific and 
engineering issues with regard to the nature of environmental hazards 
at the installation and the restoration activities conducted, or 
proposed to be conducted at the installation using DERP and Base 
Realignment and Closure (BRAC) funding (amended sections 2705(d)(3), 
(e), and (g)). However, section 324(d) of Pub. L. 104-106 stated that 
funding for both administrative expenses and technical assistance may 
not be made after September 15, 1996, unless the Secretary publishes 
proposed final or interim final regulations for RABs (amended section 
2705(g)(2)(B)).
    Therefore, DoD proposes these regulations regarding the 
characteristics, composition, funding, and establishment of RABs. DoD 
recognizes that each RAB established will be a unique organization 
dealing with installation-specific issues. This proposal, developed 
consistent with the recommendations set forth in the FFERDC's Final 
Report, is consistent with existing DoD and EPA policy on RABs, and 
reflects over two years of experience in establishing and operating 
RABs throughout the United States. DoD has structured this proposal to 
maximize flexibility for RAB members and installations nationwide.

III. Summary of the Proposed Rule

    DoD is proposing and requesting public comment on regulations 
regarding the establishment, characteristics, composition, and funding 
of RABs. This section of the preamble provides a summary of the 
proposed regulations in 32 CFR part 202.

A. General Requirements

    In this section of the proposed rule, DoD discusses the purpose, 
scope, and applicability of the proposed regulations for RABs. DoD is 
required by revised section 2705(d)(2)(A) of title 10, United States 
Code, to issue regulations concerning the establishment, 
characteristics, composition, and funding of RABs. When issued as a 
final rule, the regulations will apply to all RABs regardless of when 
they were established.
    In this proposal, DoD defines the purpose of a RAB as providing an 
expanded opportunity for stakeholder input into the environmental 
restoration process at operating and closing DoD installations. While a 
RAB will complement other community involvement efforts undertaken by 
the installation concerning environmental restoration, DoD that a RAB 
does not replace other types of community outreach and participation 
activities required by applicable federal and state laws.
    DoD will require that a RAB be established at an installation when 
there is sufficient and sustained community interest and any of four 
specified criteria are met. The installation shall have the lead 
responsibility for forming and operating a RAB. Further, DoD proposes 
five minimum steps that the installation should take to determine if 
sufficient and sustained community interest exists in forming a RAB.
    Prior to establishing a RAB, DoD is proposing that the installation 
should notify potential stakeholders of its intent to form a RAB. 
Stakeholders are defined as all parties that are actually or 
potentially affected by restoration activities at an installation. At 
closing installations, stakeholders should include members of the Local 
Redevelopment Authorities (LRA). The notification should describe the 
purpose of a RAB and discuss opportunities for membership.

[[Page 40767]]

    This proposed rule contains guidelines regarding the composition of 
RABs. DoD proposes that each RAB should consist of representatives from 
DoD, EPA, state and local government, and members of the community. 
DoD. notes in the preamble (see section IV. A.4.a) that EPA's 
involvement on a RAB is discretionary depending on whether the 
installation is included on the National Priorities List (NPL) set 
forth in Title 40 Code of Federal Regulations part 300, appendix B. At 
closing installations, members of the BRAC Cleanup Team BCT) may serve 
on the RAB as DoD, EPA, or state representatives.
    DoD is not proposing regulations for specific roles and 
responsibilities of RAB members, but is stating that the chairmanship 
of a RAB must be shared between the installation and community. In 
addition, DoD proposes that community members of a RAB shall not be 
compensated by DoD for their participation.

B. Operating Requirements

    In this section of the proposed rule, DoD sets forth basic 
requirements for the operation of a RAB. DoD proposes that each RAB 
should develop a mission statement that describes its overall purpose 
and goals. DoD also specifies certain requirements regarding the 
selection process for co-chairs. DoD proposes that the installation's 
co-chair shall be determined by the installation's Commanding Officer 
(CO) or other DoD decision authority in accordance with military 
service-specific guidance. DoD is not specifying any required 
procedures for selection of the community co-chair or for community 
members of the RAB in general, only that the community members of the 
RAB will be responsible for selecting their co-chair.
    DoD proposes that each RAB should develop a set of operating 
procedures. These procedures may address: Announcing meetings; 
attendance of members at meetings; frequency of meetings; addition or 
removal of RAB members; length of service for RAB members and co-
chairs; methods for dispute resolution; review of responses to public 
comments; participation of the general public in RAB operations; and 
keeping the public informed about RAB proceedings.
    DoD is not proposing specific requirements concerning the conduct 
of RAB meetings, because the meeting format of each RAB will vary and 
be dictated by the needs of the participants. However, DoD proposes 
that the installation should prepare meeting minutes summarizing the 
topics discussed at RAB meetings, and make them available in 
information repositories.

C. Administrative Support, Funding, and Reporting Requirements

    In this section of the proposed rule, DoD sets forth requirements 
regarding administrative support for establishing and operating a RAB, 
funding for administrative support, and reporting requirements 
regarding the activities and administrative expenses associated with 
RABs. This section also references impending regulations governing how 
community members of RABs and TRCs may seek funding for obtaining 
technical assistance to interpret scientific and engineering issues 
with regard to the nature of environmental hazards at the installation 
and the restoration activities conducted, or proposed to be conducted 
at the installation.
    Section 324 of Pub. L. 104-106 amended section 2705(d)(3), title 
10, United States Code, authorizes the CO of an installation, or if 
there is no such commander, an appropriate DoD official, to pay for 
routine administrative expenses of a RAB established at an 
installation. To implement this provision, this proposed rule requires 
that the installation provide administrative support to establish and 
operate a RAB, subject to the availability of funds. The scope of this 
support corresponds to those activities that are eligible for DoD 
funding including:
     Establishing a RAB.
     Membership selection.
     Certain types of training.
     Meeting announcements.
     Meeting facility.
     Meeting facilitators, including translators.
     Preparation of meeting materials and minutes.
     Maintenance of a RAB mailing list and mailing of RAB 
materials.
    Section 324(d) of Pub. L. 104-106 amended section 2705(g) title 10, 
United States Code, prescribes the level and allocation of funds 
earmarked for RAB administrative expenses. Accordingly, the proposed 
rule establishes these requirements and specifies that operating 
installations should pay for RAB administrative expenses using funds 
from their Component's Defense Environmental Restoration Account 
(DERA). At closing installations, DoD proposes that installations use 
BRAC funds to pay for eligible RAB administrative expenses.
    Section 324(c) of Pub. L. 104-106 revised section 2705(e), title 
10, United States Code, enables community members of a RAB or TRC to 
request DoD to obtain from the private sector, technical assistance for 
interpreting scientific and engineering issues with regard to the 
nature of environmental hazards at the installation and the restoration 
activities conducted, or proposed to be conducted at the installation.
    Later this year, DoD will issue a rule addressing policies and 
procedures for obtaining technical assistance under section 2705(e). In 
this proposed rule, DoD states that community members of a RAB or TRC 
seeking technical assistance in interpreting information with regard to 
the restoration activities at an installation may obtain a grant 
through such programs as EPA's Technical Assistance Grant (TAG) program 
or Technical Outreach Services to Communities (TOSC) program. Upon 
DoD's promulgation of regulations implementing section 2705(e), 
Technical Assistance for Public Participation (TAPP), community members 
of a RAB or TRC may request the installation CO, or appropriate DoD 
official, to obtain from private sector sources technical assistance.
    Section 324(f) of Pub. L. 104-106 amends section 2706(a)(2) of 
title 10, United States Code, by adding subsection (j) requiring DoD to 
report to Congress on the activities of TRCs and RABs. In order to 
fulfill this requirement, this proposed rule requires that the 
installation at which a RAB has been established document the 
activities of the RAB and track expenditures for administrative 
expenses of the RAB. This proposed rule does not prescribe specific 
procedures for the installation to follow as part of DoD's collecting 
this information when reporting to Congress. Rather, DoD will rely on 
existing internal reporting mechanisms within the Department and 
services to collect this information.

IV. Section-by-Section Analysis of the Proposed Rule

    This section of the preamble presents an analysis of each section 
of the proposed rule.

A. General Requirements

1. Purpose, Scope, and Applicability
    a. Purpose and scope of responsibilities of a RAB. To define the 
duties and responsibilities of a RAB, DoD is proposing that the purpose 
of a RAB is to provide an expanded opportunity for stakeholder input 
into the environmental restoration process at DoD installations. DoD 
considers stakeholders as parties that are actually or potentially 
affected by restoration

[[Page 40768]]

activities at an installation. At closing installations, the LRA, as 
defined under BRAC, are included as stakeholders.
    This proposed rule does not list specific responsibilities of a 
RAB, but DoD considers the following types of activities within the 
scope of a RAB:
     Providing advice to the installation, EPA, state 
regulatory agency, and other government agencies on restoration 
activities and community involvement.
     Addressing important issues related to restoration, such 
as the scope of studies, cleanup levels, waste management, and remedial 
action alternatives.
     Reviewing and evaluating documents associated with 
restoration activities, such as plans and technical reports.
     Identifying restoration projects to be accomplished in the 
next fiscal year and beyond.
     Recommending priorities among sites or projects.
     Conducting regular meetings that are open to the public 
and scheduled at convenient times and locations.
     Interacting with the LRA or other land use planning bodies 
to discuss future land use issues relevant to environmental restoration 
decision-making.
    By establishing a RAB, DoD hopes to ensure that interested 
stakeholders have a voice and can actively participate in a timely and 
thorough manner in the planning and implementation of the environmental 
restoration. A RAB will serve as a forum for the expression and careful 
consideration of diverse points of view.
    While a RAB complements other community involvement efforts at DoD 
installations, DoD notes in the proposed rule that a RAB does not 
replace other types of community outreach and participation activities 
required by law, regulation, or policy. DoD installations will continue 
to be responsible for fulfilling all legally mandated public 
involvement requirements, such as those required under CERCLA, RCRA, 
NEPA, and applicable state environmental regulations.
    b. Applicability of regulations to existing RABs. As directed by 
section 2705(d)(2)(A) of title 10, United States Code, DoD must 
prescribe regulations regarding the establishment, characteristics, 
composition, and funding of RABs. DoD intends that the final 
regulations will apply to all RABs, including RABs established prior to 
the effective date of the final rule. DoD does not consider that 
applying final regulations to RABs already established will pose any 
additional requirements or conflict, because the proposed regulations 
are based on existing DoD policy that has been implemented since 
September 1994.
2. Criteria for Establishment
    a. Determing If Sufficient Interest Warrants Establishing a RAB. In 
this rule, RABs may only be established at operating or closing 
installations undergoing environmental restoration. In accordance with 
existing policy, DoD proposes that a RAB be established when there is 
sufficient and sustained community interest and any of the following 
criteria are met:
     The closure of an installation involves the transfer of 
property to the community.
     At least 50 local citizens petition for an advisory board.
     Federal, state, or local government representatives 
request formation of an advisory board, or
     The installation determines the need for an advisory 
board.
    To clarify how an installation will determine the need for an 
advisory board, DoD proposes that the installation determine the level 
of interest within the community for establishing a RAB by:
     Reviewing correspondence files.
     Reviewing media coverage.
     Consulting community members.
     Consulting relevant government officials, and
     Evaluating responses to notices placed in local 
newspapers.
    At the majority of installations that have an environmental 
restoration program, DoD expects that local communities will be 
interested in forming a RAB. If, however, outreach efforts reveal no 
interest within the community, a description of those efforts taken, a 
summary of the results, and plans for future efforts, must be 
documented as part of the installation's community relations plan 
(CRP). Under CERCLA (see 40 CFR 300.430(c)), an installation must 
prepare a formal CRP based on community interviews and other relevant 
information. The CRP specifies the community relations activities the 
installation expects to undertake during the restoration process.
    DoD notes that installation efforts to identify the level of 
community interest in establishing a RAB should not be limited to a 
one-time assessment of the criteria discussed above. Although DoD is 
not proposing a specific requirement, DoD recommends that the 
installation reassess current community interest in the restoration 
program as part of the periodic update of its CRP.
    b. Responsibility for forming and operating a RAB. Once the 
installation determines that a RAB must be established, DoD proposes 
that the installation have the lead responsibility for forming and 
operating the RAB. The installation should have lead responsibility 
because the RAB will be an integral part of the installation's 
community involvement and outreach programs. DoD recommends that 
installations involve, as appropriate, EPA, state, and local government 
in all phases of RAB planning and operation.
    c. Converting existing Technical Review Committees (TRCs) to RABs. 
TRCs were established at more than 200 DoD installations to provide 
interested parties with a forum to discuss and provide input into 
environmental restoration activities. DoD recommends that, where there 
is sufficient and sustained interest, installations expand or modify 
existing TRCs or similar groups to become RABs rather than create a 
separate committee.
    RABs will expand the TRC initiative in the following ways: (1) RABs 
will involve a greater number of community members than TRCs, thereby 
better incorporating the diverse needs and concerns of the community 
directly affected by environmental restoration activities; and (2) 
chairmanship of the RAB will be shared between the installation and 
community, promoting partnership and a strong commitment to incorporate 
the community's concerns into the decision-making process. In these 
situations, RABs will fulfill the statutory requirements for a TRC.
    In order to convert a TRC to a RAB, several tasks must be 
accomplished. These tasks include: Increasing community representation; 
adding a community co-chair; and making meetings open to the public. 
The DoD installation should evaluate the diversity of the current 
membership of the TRC when converting to a RAB. DoD recommends that the 
installation should consult with EPA and the state, as appropriate, 
regarding the diversity of the current membership of the TRC. When 
formulating RABs, it is DoD's goal to ensure diversity and balance in 
membership of RABs. DoD believes that current TRC members should be 
given a preference for a seat on the RAB to preserve continuity and the 
``institutional history'' of the environmental restoration process. 
However, DoD feels that this preference to include existing TRC members 
in RABs also should be balanced against the preeminent need to form a 
RAB truly representative of the community's diverse interests.

[[Page 40769]]

3. Notification of Formation of a RAB
    a. Public notice and outreach. Prior to establishing a RAB, DoD 
proposes that installations should notify potential stakeholders of its 
intent to form a RAB, including those installations that may be 
converting TRCs to RABs. In announcing the formation of a RAB, the 
installation should describe the purpose of a RAB and discuss 
membership opportunities.
    DoD recommends that every effort be made to ensure that a broad 
spectrum of individuals or groups representing the community's 
interests are informed about the RAB, its purpose, and membership 
opportunities. In some cases, it may be necessary that the installation 
directly solicit some groups or organizations, particularly groups 
traditionally underrepresented such as low-income and minority segments 
of the population. Installations should consult the existing TRC, 
state, and EPA for information or other comments before providing this 
notice.
    b. RAB information meeting. While not required in the proposed 
rule, DoD suggests that an installation sponsor an informational 
meeting prior to establishing a RAB. The focus of this meeting will be 
to introduce the concept of RABs to the community and to begin the 
membership solicitation process.
4. Composition of a RAB
    a. Membership. DoD's goal is that RAB membership be well balanced 
and reflect the diverse interests within the local community. 
Therefore, DoD proposes that each RAB should consist of representatives 
of DoD, EPA, state and local government, and members of the community.
    b. Government representation. DoD proposes that DoD, EPA, and state 
and local governments should be represented on the RAB. Potential 
candidates may include the Remedial Project Manager (RPM) from the 
installation, EPA, and the state, as well as representatives from local 
government agencies. In the case of closing military installations, 
members of the BCT may serve on the RAB as DoD, EPA, and state 
representatives. It is important that any government representative 
chosen for RAB membership dedicate the time necessary, and have 
sufficient authority, to fulfill all RAB responsibilities.
    EPA, state, and local regulatory agencies fulfill important roles 
on a RAB, because of their regulatory oversight of DoD environmental 
restoration activities. However, EPA stated in the September 27, 1994 
Restoration Advisory Board Implementation Guidelines that its 
involvement on a RAB will vary based on whether the installation is on 
the National Priorities List (NPL) under the CERCLA. The NPL, set forth 
in Title 40 CFR part 300, appendix B, is a list of sites ranked in 
order of priority for hazardous waste restoration. EPA is committed to 
full involvement as the federal regulatory agency on RABs where EPA has 
received resources from DoD. For installations that are not included on 
the NPL, non-base closure or base closure installations where EPA has 
not been given resources from DoD, EPA's involvement will be at the 
discretion of the Regional Administrator of EPA's regional office. DoD 
has included EPA's discretionary involvement in RABs in the proposed 
rule.
    Ideally, DoD believes that RABs should have only one representative 
from each government agency, so as to prevent an inordinate 
representation of government and DoD officials. While DoD encourages 
other government representatives to attend RAB meetings their role will 
be strictly one of providing information and support.
    c. Community representation. RAB community members should live and/
or work in the affected community or be affected by the installation's 
environmental restoration program. While DoD is not proposing specific 
procedures to be used for selecting community members of the RAB, DoD 
notes that one of the most sensitive issues facing installations that 
establish a RAB concerns the selection of community members. When 
members of the community feel the selection process for RAB members, 
particularly of community members, is conducted in a fair and unbiased 
manner, it enhances their perception that the RAB can be a credible 
forum for the discussion of their issues and concerns. If the selection 
of community members is not approached carefully, the result can be a 
loss of trust and failure to achieve dialogue.
    DoD will not limit the ability of community RAB members who have 
business interests to compete for DoD contracts, if proper and 
appropriate assurances to avoid any potential conflicts of interest are 
issued.
    d. Roles and responsibilities of members. DoD proposes that 
chairman ship of the RAB be shared between the installation and the 
community. DoD believes this will promote partnering between the two 
parties and reflect a strong commitment by DoD to incorporate the 
community's concerns into decisions about the environmental restoration 
process. Together, the installation and community co-chairs will 
jointly determine meeting agendas, run meetings, and ensure that issues 
related to the environmental restoration are raised and adequately 
addressed.
    DoD also is specifying in the proposed rule that the community co-
chair and community RAB members are expected to serve without 
compensation for their services. DoD considers community membership on 
a RAB to be voluntary, and therefore these members will not be paid by 
DoD for the time invested or services rendered.
    DoD is not proposing specific requirements concerning the roles and 
responsibilities of individual members of a RAB. DoD considers the 
issuance of such regulations to be overly burdensome to the formation 
and operation of RABs, and therefore unnecessary. DoD recommends that 
installations consult previous guidance concerning the roles of 
individual members when forming and operating a RAB.

B. Operating Requirements

1. Creating a Mission Statement
    DoD proposes that each RAB should develop a mission statement that 
articulates the overall purpose of the RAB. DoD considers this 
necessary to provide focus and goals for the group. In addition, when 
members of the RAB agree early on to their mission, it provides a 
framework for discussions. Without the framework, discussions may 
become hampered with issues that are not relevant to the environmental 
restoration process.
2. Selecting Co-Chairs
    DoD proposes that the installation co-chair be selected by the 
installation's CO or as defined by military service-specific guidance, 
while the community members of the RAB will select the community co-
chair. DoD considers it necessary for the community members to select 
their co-chair to ensure their active participation in the operation of 
the RAB and to enhance their perception that the RAB can be a credible 
forum for their issues and concerns.
3. Developing Operating Procedures
    DoD considers a formal and agreed-upon set of operating procedures 
necessary to manage the business of RABs. While DoD will allow each RAB 
to customize or tailor its operating procedures as it sees fit, DoD 
proposes that each RAB develop operating procedures on:
     Announcing meetings.
     Attendance of members at meetings.

[[Page 40770]]

     Frequency of meetings.
     Additions or removals of RAB members.
     Length of service of members and co-chairs.
     Methods for dispute resolution.
     Review and responses to public comments.
     Participation of the public.
     Keeping the public informed.
    With regards to keeping the public informed, DoD proposes that the 
installation prepare meeting minutes summarizing the topics discussed 
at the meeting. This is needed to ensure dissemination of the results 
to community members and interested parties. DoD also proposes that, at 
a minimum, the minutes should be distributed to the information 
repositories established under the installation's CRP. Although not 
required, DoD recommends that the installation consider mailing copies 
of the minutes to all community members who attended the meeting, 
existing TRC members, and/or to people identified on the installation's 
community relations mailing list.
4. Training RAB Members
    DoD is not proposing a requirement for training members of the RAB. 
However, DoD believes that RAB members may need some initial 
orientation training to enable them to fulfill their responsibilities. 
DoD recommends that the installation should work with EPA, the state, 
and environmental groups to develop methods to quickly inform and 
educate the RAB members and to promote the rapid formation of a fully 
functioning RAB.\1\
---------------------------------------------------------------------------

    \1\ Further guidance on training RAB community members may be 
found in ``Restoration Advisory Board Guidelines, DoD/EPA September 
1994.''
---------------------------------------------------------------------------

    DoD notes that under this proposed rule, only certain types of 
training will be considered within the scope of administrative support 
for RABs, and therefore, financed using funds allocated to the 
administrative expenses of RABs. DoD further discusses training in 
context of administrative support eligible for available funding in 
section C.1.b. of this preamble.
5. Conducting RAB Meetings
    DoD believes the meeting format of each RAB will vary and be 
dictated by the needs of the participants. Therefore, DoD is not 
proposing specific procedures for conducting RAB meetings.\2\
---------------------------------------------------------------------------

    \2\ For further guidance on meeting formats see ``Restoration 
Advisory Board Implementation Guidelines, DoD/EPA September 1994.''
---------------------------------------------------------------------------

    Regarding the nature of discussions at RAB meetings, DoD will 
consider all advice provided by the RAB whether consensus in nature or 
provided on an individual basis, including advice given that represents 
the minority view of members. While voting or polling the members may 
facilitate RAB discussions, such votes should be advisory only and not 
binding on agency decisionmakers. Group consensus is not a prerequisite 
for RAB input; each member of the RAB should provide advice as an 
individual. At the same time, while group consensus is not required or 
asked of advisory board members, it is recognized that in the natural 
course of discussions, consensus may evolve.

C. Administrative Support, Funding, and Reporting Requirements

1. Administrative Support and Eligible Expenses
    a. Administrative support. Section 324 of Pub. L. 104-106 amended 
section 2705(d)(3), title 10, United States Code, authorizes the CO of 
an installation, or if there is no such commander, an appropriate DoD 
official, to pay for routine administrative expenses of a RAB 
established at an installation. To implement this provision, this 
proposed rule requires that the installation provide administrative 
support to establish and operate a RAB, subject to the availability of 
funds. Securing ongoing administrative support is especially important 
for closing or closed installations.
    DoD proposes to define the scope of activities that are unique to 
the establishment and operation of RABs, and therefore eligible for 
funds as RAB administrative expenses.
    b. Eligible administrative expenses. In order for an activity to be 
considered as an eligible RAB administrative cost, the activity must be 
unique to and directly associated with establishing and operating the 
RAB. For example, producing a fact sheet as part of obtaining a 
hazardous waste storage permit under RCRA or hosting an installation 
open house as specified by the community relations plan under CERCLA, 
may not necessarily be relevant to a RAB's mission statement or 
operations. The costs incurred in preparing and distributing such a 
fact sheet or holding the open house would not be considered 
administrative support required for a RAB.
    While DoD cannot identify all possible examples of activities 
unique to and directly associated with establishing and operating a 
RAB, DoD proposes to consider the following activities as typical of 
administrative support required for a RAB:
     RAB establishment.
     Membership selection.
     Certain types of training.
     Meeting announcements.
     Meeting facility.
     Facilitators, including translators.
     Preparation of meeting agenda materials and minutes.
     Maintenance of a RAB mailing list and mailing of RAB 
materials.
    Which regards to training RAB members, DoD clarifies that in order 
for training to be considered an eligible administrative cost, it must 
mutually benefit the mission and all members of a RAB and be relevant 
to the environmental restoration activities occurring at the 
installation. For example, if the installation were to hold an 
orientation training for members of a RAB, costs incurred in preparing 
training manuals, slides, or other presentation materials would be 
considered an allowable administrative expense, because such training 
is unique to and mutually beneficial to the mission and members of the 
RAB.
    A type of training that would not qualify as a RAB administrative 
support includes specialized training for an individual member of a 
RAB, such as an off-site workshop on building leadership capabilities. 
DoD does not consider such training to be unique to and mutually 
beneficial to the establishment and operation of a RAB. However, DoD 
notes that types of training that are not eligible for funding as a RAB 
administrative expense may qualify and be eligible for funding as 
technical assistance.
2. Funding
    Section 324(d) of Pub. L. 104-106 amended section 2705(g) title 10, 
United States Code, prescribes the level and allocation of funds for 
RAB administrative expenses. Accordingly, DoD is proposing to establish 
these requirements as is. The proposed rule states that subject to 
available funding, operating installations should pay for RAB 
administrative expenses using funds from their Component's DERA. At 
closing installations, DoD proposes that installations use BRAC funds 
to pay for eligible RAB administrative expenses.
3. Technical Assistance to Community Members
    Section 324(c) of Pub. L. 104-106 revised section 2705(e), title 
10, United States Code, enables a RAB or TRC to request from the 
private sector, technical assistance for interpreting scientific and 
engineering issues with regard to the nature of environmental

[[Page 40771]]

hazards at the installation and the restoration activities conducted, 
or proposed to be conducted at the installation.
    This proposed rule states that community members of RABs or TRCs 
seeking technical assistance in interpreting information with regard to 
the restoration activities at an installation may request assistance 
from such programs as EPA's TAG and TOSC programs. Section 117(e) and 
311(d) of CERCLA as amended by SARA, established the TAG and TOSC 
programs, respectively. These programs provide grants for groups of 
individuals to hire independent technical advisors who can help them 
understand technical information, findings, and recommendations related 
to a site. Regulations for EPA's TAG program are found in 40 CFR part 
35 subpart M.
    On May 24, 1995, DoD issued a Notice of Request for Comments (60 FR 
27460), in which DoD requested comments on three options for technical 
assistance funding to citizens affected by environmental restoration 
activities at DoD installations (referred to as the Technical 
Assistance for Public Participation (TAPP) rulemaking). As the final 
TAPP rulemaking will specify the selected option for providing 
technical assistance for short-term training, attendance at workshops, 
and the procurement of technical consultants to interpret scientific 
and engineering issues with regard to the nature of environmental 
hazards at an installation and the restoration activities proposed for 
or conducted at the installation, DoD does not address these 
requirements in this proposed rule.
    Upon DoD's promulgation of TAPP regulations, community members of 
RABs or TRCs may request the installation CO, or appropriate DoD 
official, to obtain from private sector sources technical assistance.
4. Documenting and Reporting Activities and Expenses
    Section 324(f) of Pub. L. 104-106 amends section 2706(a)(2) of 
title 10, United States Code, by adding subsection (j) requiring DoD to 
report to Congress on the activities of TRCs and RABs. In order to 
fulfill this requirement, this proposed rule requires that the 
installation at which a RAB has been established document the 
activities of the RAB and track expenditures for administrative 
expenses of the RAB. With regards to tracking expenses, DoD recommends 
that installations tally costs according to the specific activities 
identified above (see section IV.C.1.b. of the preamble) that are 
typical of administrative support required for a RAB.
    Although this proposed rule requires installations to document RAB 
activities and track expenditures, DoD is not prescribing specific 
procedures to accomplish this. In addition, DoD will use internal 
department and service-specific reporting mechanisms to obtain required 
information from installations on RAB activities and expenditures when 
reporting to the Congress.

V. Regulatory Analysis

A. Regulatory Impact Analysis Pursuant to Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), DoD 
must determine whether a regulatory action is ``significant'' and 
therefore subject to review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order.
    DoD has determined that this proposed rule is not a ``significant 
regulatory action'' because it is unlikely to:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, productivity, 
competition, jobs, the environment, public health or safety, of State, 
local, or tribal governments or communities;
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan program or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

B. Regulatory Flexibility Act

    It has been certified that this proposed rule is not subject to the 
Regulatory Flexibility Act (RFA) of 1980, 5 U.S.C. 601 et seq. because 
it would not, if promulgated, have a significant economic impact on a 
substantial number of small entities. The primary effect of the 
proposed rule will be to increase community involvement in DoD's 
environmental restoration program.

C. Paperwork Reduction Act

    It has been certified that the proposed rule does not impose any 
reporting or recordkeeping requirements subject to the Paperwork 
Reduction Act of 1995 (Pub. L. No. 104-13).

VI. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995, DoD 
must prepare a statement to accompany any rule where the estimated 
costs to State, local, or tribal governments in the aggregate, or to 
the private sector, will be $100 million or more in any one year.
    DoD has determined that this proposed rule will not include a 
Federal mandate that may result in estimated costs of $100 million or 
more to either State, local, or tribal governments in the aggregate, or 
to the private sector.

List of Subjects in 32 CFR Part 202

    Administrative practice and procedure, Environmental protection--
restoration, Federal buildings and facilities, Organization and 
functions (Government agencies).

    Title 32 of the Code of Federal Regulations, Chapter I, Subchapter 
M, is amended by adding part 202 to read as follows:

PART 202--RESTORATION ADVISORY BOARDS (RABs)

Subpart A--General Requirements

Sec.
202.1  Purpose, scope, and applicability.
202.2  Criteria for establishment.
202.3  Notification.
202.4  Composition of a Restoration Advisory Board (RAB).

Subpart B--Operating Requirements

202.5  Creating a mission statement.
202.6  Selecting co-chairs.
202.7  Developing operating procedures.
Subpart C--Administrative Support, Funding, and Reporting Requirements
202.8  Administrative support and funding.
202.9  Technical assistance to community members.
202.10  Documenting and reporting activities and expenses.

    Authority: 5 U.S.C. 551 et seq. and 10 U.S.C. 2705.

Subpart A--General Requirements


Sec. 202.1  Purpose, scope, and applicability.

    (a) The purpose of this part is to establish regulations regarding 
the characteristics, composition, funding and establishment of 
Restoration Advisory Boards (RABs).
    (b) The regulations in this part apply to all RABs regardless of 
when the board was established.
    (c) The purpose of a RAB is to provide an expanded opportunity for 
stakeholder input into the environmental restoration process occurring 
at operating and closing installations and at formerly used defense 
sites. Stakeholders are those parties that are actually or may be 
potentially affected by restoration activities at the installation.
    (d) A RAB will complement other community involvement efforts

[[Page 40772]]

occurring at an installation; however it does not replace other types 
of community outreach and participation activities required by 
applicable laws and regulations.


Sec. 202.2  Criteria for establishment.

    (a) A RAB should be established when there is sufficient and 
sustained community interest, and any of the following criteria are 
met:
    (1) The closure of an installation involves the transfer of 
property to the community;
    (2) At least 50 local citizens petition the installation for 
creation of an advisory board;
    (3) Federal, state, or local government representatives request the 
formation of an advisory board; or
    (4) The installation determines the need for an advisory board.
    (b) To determine the need for establishing a RAB, an installation 
should:
    (1) Review correspondence files;
    (2) Review media coverage;
    (3) Consult local community members;
    (4) Consult relevant government officials; and
    (5) Evaluate responses to notices placed in local newspapers.
    (c) The installation shall have lead responsibility for forming and 
operating a RAB.


Sec. 202.3  Notification.

    Prior to establishing a RAB, an installation should notify 
potential stakeholders of its intent to form a RAB. In announcing the 
formation of a RAB, the installation should describe the purpose of a 
RAB and discuss opportunities for membership.


Sec. 202.4  Composition of a Restoration Advisory Board (RAB).

    (a) Membership. At a minimum, each RAB should consist of 
representatives from the Department of Defense (DoD), the U.S. 
Environmental Protection Agency (EPA), state government, community, and 
local government. At closing installations, the representatives of the 
Base Realignment and Closure (BRAC) Cleanup Team (BCT) may also serve 
as the government representative(s) of the RAB. For non-closing 
installations, or installations where EPA has not been given support 
resources from DoD, EPA's involvement will be at the discretion of the 
Administrator of the appropriate EPA regional office.
    (b) Chairmanship. Each RAB established shall have two cochairs; one 
representing the DoD installation and the other a community member. Co-
chairs shall be responsible for directing and managing the operations 
of the RAB.
    (c) Compensation for Community Members of the Restoration Advisory 
Board. The community co-chair and community members serve voluntarily, 
therefore they will not be compensated by DoD for their participation.

Subpart B--Operating Requirements


Sec. 202.5  Creating a mission statement.

    Each RAB should develop a mission statement that describes its 
overall purpose and goals.


Sec. 202.6  Selecting co-chairs.

    (a) DoD Installation Co-Chair. The DoD installation co-chair shall 
be selected by the installation's Commanding Officer or in accordance 
with military service-specific guidance.
    (b) Community Co-Chair. The community co-chair shall be selected by 
the community members of the RAB.


Sec. 202.7  Developing operating procedures.

    (a) Each RAB should develop a set of operating procedures. Areas 
that may be addressed in the procedures involve:
    (1) Announcing meetings;
    (2) Attendance of members at meetings;
    (3) Frequency of meetings;
    (4) Addition or removal of members;
    (5) Length of service for members and co-chairs;
    (6) Methods for dispute resolution;
    (7) Review and responses to public comments;
    (8) Participation of the public in operations of the RAB;
    (9) Keeping the public informed about proceedings of the RAB.
    (b) The installation and community co-chairs should prepare meeting 
minutes summarizing the topics discussed at meetings of the RAB. The 
installation should make the meeting minutes available in information 
repositories.

Subpart C--Administrative Support, Funding, and Reporting 
Requirements


Sec. 202.8  Administrative support and funding.

    (a) Subject to the availability of funding, the installation shall 
provide administrative support to establish and operate a RAB.
    (b) Allowable Administrative Expenses for a Restoration Advisory 
Board: The following activities unique to and directly associated with 
establishing and operating a RAB shall qualify as an administrative 
expense of a RAB:
    (1) Establishment of the RAB;
    (2) Membership selection;
    (3) Certain types of training;
    (4) Meeting announcements;
    (5) meeting facility;
    (6) Meeting facilitators, including translators;
    (7) Preparation of meeting agenda materials and minutes;
    (8) Maintenance of a mailing list for the RAB and mailings of 
materials developed and used by the RAB.
    (c) Funding:
    (1) At operating installations, administrative expenses for a RAB 
shall be paid for using funds from the Component's Environmental 
Restoration Accounts.
    (2) At closing installations, administrative expenses for a RAB 
shall be paid using Base Realignment and Closure (BRAC) funds.


Sec. 202.9  Technical assistance to community members.

    Community members of a RAB or TRC may request technical assistance 
for interpreting scientific and engineering issues with regard to the 
nature of environmental hazards at the installation and restoration 
activities conducted, or proposed to be conduct at the installation.


Sec. 202.10  Documenting and reporting activities and expenses.

    The installation, at which a RAB is established, shall document the 
activities and record the administrative expenses associated with the 
RAB.

    Dated: July 31, 1996.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 96-19886 Filed 8-5-96; 8:45 am]
BILLING CODE 5000-04-M