[Federal Register Volume 71, Number 92 (Friday, May 12, 2006)]
[Rules and Regulations]
[Pages 27610-27621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4246]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 202

[DoD-2006-OS-0077; 0790-AG31]


Department of Defense Restoration Advisory Boards

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: The Department of Defense (DoD) is promulgating the 
Restoration Advisory Board (RAB) rule regarding the scope, 
characteristics, composition, funding, establishment, operation, 
adjournment, and dissolution of RABs. This rule implements the 
requirement established in 10 U.S.C. 2705(d)(2)(A), which requires the 
Secretary of Defense to prescribe regulation regarding RABs. This rule 
is based on DoD's current policies for establishing and operating RABs, 
as well as the Department's experience over the past ten years.

DATES: This rule is effective May 12, 2006.

FOR FURTHER INFORMATION CONTACT: For specific questions or to request 
an opportunity to review the docket for this rulemaking, please contact 
Ms. Patricia Ferrebee, Office of the Deputy Under Secretary of Defense 
(Installations & Environment), 703-571-9060. This final rule, along 
with relevant background information, is available on the World-Wide 
Web at the Defense Environmental Network and Information eXchange Web 
site at https://www.denix.osd.mil/rabrule.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Authority
II. Background
III. Summary of Significant Changes to the Final Rule
IV. Response to Comments
V. Administrative Requirements
    A. Regulatory Impact Analysis Pursuant to Executive Order 12866
    B. Regulatory Flexibility Act
    C. Unfunded Mandates
    D. Paperwork Reduction Act
    E. National Technology Transfer and Advancement Act
    F. Environmental Justice Requirements Under Executive Order 
12898
    G. Federalism Considerations Under Executive Order 13132

I. Authority

    This rule is being finalized under the authority of Section 2705 of 
Title 10, United States Code (U.S.C.).

II. Background

    The Department of Defense (DoD) published the Restoration Advisory 
Board (RAB) rule in the Federal Register as a proposed rule on January 
28, 2005 (70 FR 4061) in 32 U.S. Code of Federal Regulations (CFR) Part 
202. The public comment period for the proposed rule ended March 29, 
2005. Thirty-four commenters submitted comments on the proposed rule. 
The preamble to this final rule consists mainly of an explanation of 
the Department's responses to these comments. Therefore, both this 
preamble and the preamble to the proposed rule should be reviewed 
should a question arise as to the meaning or intent of the final rule. 
Unless directly contradicted or superseded by this preamble to the rule 
or by the rule, the preamble to the proposed rule reflects DoD's intent 
for the rule.
    The preamble to the final rule provides a discussion of each 
proposed rule section on which comments were received. Revisions to the 
proposed rule that are simply editorial or that do not reflect 
substantive changes are not addressed in this preamble. All comments 
the Department received are presented in a ``Response to Comments'' 
document, which has been placed in the docket for this rulemaking.
    DoD recognizes the importance of public involvement at military 
installations. For the purposes of this rule, the term installation 
means operating and closing DoD installations and formerly used defense 
sites (FUDS) that reacquire environmental restoration. DoD has 
developed community involvement 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 
environmental restoration activities at military installations. It is 
DoD policy to provide the public with the ability to participate in 
these activities through the establishment of RABs, among other public 
involvement opportunities.
    Based on statutory and regulatory requirements for community

[[Page 27611]]

involvement and recommendations from the Federal Facilities 
Environmental Restoration Dialogue Committee (FFERDC), DoD has 
strengthened its community involvement efforts, including the RAB 
initiative, under its environmental restoration program. DoD believes 
that working in partnership with local communities and addressing the 
concerns of those communities early in the restoration process has 
enhanced its efforts under, and increased the credibility of, the 
environmental restoration program. The Department remains committed to 
involving communities near DoD installations in environmental 
restoration decision-making processes that may affect human health, 
safety and the environment.
    RABs have become a significant component of DoD's efforts to 
increase community involvement in the environmental restoration 
program. RABs provide a continuous forum through which members of 
affected communities can provide input to an installation's ongoing 
environmental restoration activities. RAB members provide 
recommendations regarding environmental restoration to DoD. RABs are 
not Federal Advisory Committees and are specifically excluded from the 
requirements of the Federal Advisory Committee Act (10 U.S.C. 
2705(d)(2)), however, DoD does meet its substantive requirements.
    On September 27, 1994, DoD and the Environmental Protection Agency 
(EPA) jointly issued guidelines for the formation and operation of RABs 
(``Restoration Advisory Board Implementation Guidelines''). The 
guidelines describe how to implement the DoD RAB policy and identify 
each stakeholde's role within the RAB. The guidelines also state that 
existing Technical Review Committees (TRCs) or similar groups may be 
expanded or modified to become RABs, and that RABs may fulfill the 
statutory requirements for establishing TRCs (10 U.S.C. 2705(d)(1)) at 
installations undergoing environmental restoration).
    As of September 30, 2004, DoD reported the existence of 310 active 
RABs across all of the Military Component's installations. Over the 
past several years, the number of RABs has remained fairly consistent, 
although the number fluctuates as some RABs adjourn and others form. 
RABs are one part of DOD's and the Military Components' extensive 
community outreach and public participation activities, which include 
compliance with the public notice and participation requirements of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA), the Resource Conservation and Recovery Act, and other Federal 
and state environmental laws, as well as considerable consultation with 
DoD partners at Federal, state, and local government agencies.
    A RAB may only address issues associated with environmental 
restoration activities under the Defense Environmental Restoration 
Program (DERP) at DoD installations, including activities conducted 
under the Military Munitions Response program (MMRP) to address 
unexploded ordnance, discarded military munitions, and the chemical 
constituents of munitions. If a RAB already exists at an installation 
and MMRP sites are identified, the RAB may be expanded to consider 
additional issues related to the MMRP sites. If the current RAB or DoD 
installation decides that it is necessary to involve new stakeholders, 
the installations should notify potential stakeholders of its intent to 
expand the RAB and solicit new members who have an interest in issues 
related to the MMRP. If there is no current RAB active at the 
installation and MMRP sites are identified, the installation will 
follow the prescribed guidance for determining sufficient community 
interest in forming a RAB.
    The Secretary of Defense is required to ``prescribe regulations 
regarding the establishments, characteristics, composition, and funding 
of Restoration Advisory Boards'' (10 U.S.C. 2705(d)(2)(A)). DoD's 
issuance of the RAB rule is not, however, a precondition to the 
establishment of RABs (10 U.S.C. 2705(d)(2)(B)). Therefore, DoD 
provides the RAB rule regarding the scope, characteristics, 
composition, funding, establishment, operation, adjournment, and 
dissolution of RABs. DoD recognizes that each RAB established will be a 
unique organization dealing with installation-specific issues. This 
rule is consistent with the recommendations set forth in the FFERDC's 
Final Report and reflects over ten years of experience in establishing 
and operating RABs throughout the United States. DoD has structured 
this proposal to maximize flexibility for RAB members and installations 
nationwide.

III. Summary of Significant Changes to the Final Rule

    The Department of Defense has made no significant changes to the 
RAB final rule.

IV. Response to Comments

    The Department received many comments on the proposed rule. Many 
comments were supportive of the proposed rule and the role of RABs in 
public participation. In particular, commenters believed that the rule 
provides standards that are comprehensive yet flexible enough to 
address the 310 active RABs operating at DoD installations across the 
nation. This section contains the Department's responses to the 
comments received on the proposed rule, organized by the structure of 
the proposed and final rules.

A. 202.1 Purpose, Scope, Definitions, and Applicability

    The Department received several comments requesting that the scope 
of RABs be modified to include additional community concerns outside of 
environmental restoration activities under the DERP. Although RABs have 
been identified as a successful forum for public discussion of 
community concerns, DoD funds RABs with money dedicated to supporting 
environmental restoration activities under the DERP. The Department 
cannot justify the discussion of issues outside the activities of the 
DERP with this same funding source. DoD continues to encourage 
installations to assist the RABs in finding the proper venue to support 
a broader scope of issues. One commenter requested that the text in the 
preamble regarding the scope of RABs be included in the rule to clarify 
that RABs may address only issues associated with environmental 
restoration activities under the DERP. The Department has modified the 
rule for clarification.
    The Department received one comment requesting that the definition 
of ``environmental restoration'' be modified to include addressing 
detection and disposal of unexploded ordnance and demolition and 
removal of unsafe buildings and structures. These activities are 
currently included by definition as part of environmental restoration.
    The Department received three additional comments regarding 
definitions. One commenter requested that the definition of 
``stakeholder'' be revised to include current landowners of FUDS 
properties. The Department has incorporated this comment into the Rule. 
DoD also received two comments requesting that munitions and explosives 
of concern (MEC) be added to the definition of environmental 
restoration. MEC are included in the Department's environmental 
restoration program, specifically, they are addressed through the MMRP. 
The Department has incorporated language regarding the MMRP into the 
final rule.

[[Page 27612]]

    The Department received many comments in support of the purpose and 
scope of this rule. Two commenters agreed with the Department regarding 
its encouragement of open public participation. One commenter agreed 
with DoD's approach that the rule applies to all RABs, regardless of 
when they were formed.

B. 202.2. Criteria for Establishment

    The Department received several comments requesting that the number 
of petitioners required to establish a RAB be reduced from 50 to 25 or 
30. The Department clarifies that 50 petitioners is not the only way to 
establish a RAB. The petition is one of four proposed mechanisms to 
initiate the establishment of the RAB. Specifically, as found in Sec.  
202.2(a) of the final rule, ``a RAB should 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 a 
RAB; Federal, state, tribal, or local government representatives 
request the formation of a RAB; or the installation determines the need 
for a RAB.'' If 25 citizens petition for a RAB in a rural or less 
populated area, it is reasonable to conclude that the installation 
would determine the need or that Federal, state, tribal, or local 
government representatives would request formation of a RAB.
    Several commenters requested that the statement ``sufficient and 
sustained community interest'' be further clarified. For RABs to 
operate, it is necessary that there be a voluntary investment of public 
participation. This public willingness to be involved in a voluntary 
group and invest the time and energy is not found in all communities. 
The statement ``sufficient and sustained community interest'' indicates 
that there is enough willingness from the community to adequately 
maintain a RAB for a continued period of time. DoD recognizes that 
installations nationwide are unique and has avoided inflexible 
standards that do not meet the needs of this program. In Section 202.2 
of this rule, rather than providing specific standards, the Department 
has outlined several tools for Installation Commanders to use in the 
evaluation of ``sufficient and sustained community interest'' including 
reviewing correspondence files and media coverage; consulting local 
community members and relevant government officials; and evaluating 
responses to communication efforts, such as notices placed in local 
newspapers, and, if applicable, announcements on the installation's 
website. Once a RAB has been established, a decline in sufficient and 
sustained community interest should be evident when the public has 
withdrawn from a role of active involvement, such as a lack of 
attendance at scheduled meetings.
    The Department received two comments requesting modified language 
regarding the conversion of existing TRCs or groups that provide advice 
to RABs. These commenters requested that, where TRCs or similar 
advisory groups already exist, the TRC or similar advisory group should 
be incorporated or converted into a RAB, provided there is sufficient 
and sustained interest within the community. The Department agrees with 
this statement and Sec.  202.2(c) of the final rule reflects this 
position.
    Several commenters requested that the Installation Commander 
reassess community interest annually rather than bi-annually. The 
Department would like to make clear that the reassessment of interest 
conducted by the Installation Commander is not the sole mechanism to 
prompt the establishment or reestablishment of a RAB. This assessment 
is part of a layering strategy to ensure that where a community has 
sufficient interest, a RAB will be established; therefore, the 
Department has decided against making this change. Additional 
mechanisms found in Sec.  202.2(a) that prompt RABs to be established 
or reestablished include the closure of an installation that involves 
the transfer of property to the community; at least 50 local citizens 
petition the installation for creation of a RAB; Federal, state, 
tribal, or local government representatives request the formation of a 
RAB; or the installation determines the need for a RAB based on 
correspondence files, media coverage, consultation of community members 
and relevant government officials, and responses to communication 
efforts, such as notices placed in local newspapers.
    Two commenters suggested that local, state, and Federal agencies be 
involved in the Installation Commanders' biennial reassessments of the 
community's interest in RAB formation. The Department understands that 
local, state, and Federal agencies are also considered part of an 
installation's community, and as such, would be part of the 
Installation Commander's reassessment of community interest.

C. 202.4. Composition of a RAB

    The Department received a few comments requesting further 
clarification and description of potential conflict of interest rules 
for RAB membership. DoD encourages these commenters to review the 
referenced documentation, the Federal Acquisition Regulation (FAR), for 
more information. The description provided in the rule is based on the 
FAR, which is the primary regulation for use by all Federal Executive 
Agencies in their acquisition of supplies and services with 
appropriated funds. The FAR can be reviewed online at http://www.arnet.gov/far/.
    The Department received several comments requesting additional 
guidelines on the selection of RAB members. Conversely, several 
comments indicated that the guidelines provided on the selection of RAB 
members were too burdensome and descriptive. Recognizing that the 
process for selecting RAB members is sensitive in nature, DoD provided 
RABs with a process for selecting these members. The Department expects 
that specific procedures developed by the selection panel will be 
established by each RAB and included in its operating procedures.
    The Department received several conflicting comments requesting 
that specific individuals be required as members of RABs and opposing 
comments requesting that those same individuals not be allowed 
membership. The Department would like to clarify that RABs are part of 
DoD's stakeholder involvement prgram, where all interested stakeholders 
are invited to participate, including individuals, health officials, 
tribal members, local governments, state officials, and Federal 
representatives. The Department does not have the authority to require 
officials, agencies, or individuals that are non-DoD personnel to 
publicly participate or requrie their membership in RABs.
    Several commenters requested that the Department expand RAB 
membership opportunities to those individuals that do not live or work 
in the affected communities. This comment was not incorporated because 
membership is restricted to those individuals that live or work in the 
affected communities. RAB meetings are widely publicized and open to 
all for participation. Representatives of organizations and agencies 
who live and work outside the affected area are certainly encouraged to 
voice their opinions and actively participate at RAB meetings. Another 
commenter requested that the Department further define the term 
``affected community.'' DoD encourages each RAB to define the term 
``affected community'' as appropriate, and to include this term in its 
operating procedures for selecting RAB members.

[[Page 27613]]

    One commenter requested revised language to transfer the role of 
appointing community RAB members from the Installation Commanders to 
community RAB members. The Department did not modify the role of the 
Installation Commander in this process. If the process outlined in 
Sec.  202.4(a)(2)(i) of the final rule is followed, the community 
selects a panel of members and the Installation Commander accepts or 
rejects all.
    One commenter recommended that the RAB member selection panel not 
announce the list of RAB nominees, but instead transmit the list of 
nominees to the Installation Commander for appointment. The Department 
has incorporated this comment as suggested.
    One comment recommended the addition of specific criteria to be 
used by the Installation Commander in determining what ``fairly 
represents the local community.'' The Installation Commander should be 
able to find information on the representation of the community in each 
installation's community Relations Plan (CRP).
    One commenter agreed that RABs should have only one representative 
from each government agency to prevent an inordinate representation by 
government and DoD officials.

D. 202.5. Creating a Mission Statement

    One commenter indicated that the language regarding a RAB's mission 
statement in the preamble was inconsistent with the language provided 
in the proposed rule. The Department reviewed the rule and noted that 
the language is consistent.

E. 202.6. Selecting Co-Chairs

    One commenter requested that the rule allow for the flexibility of 
multiple community co-chairs. The Department did not incoroporate this 
language in the rule, but recognizes that RABs are unique. One 
commenter asserted that it is appropriate for the community co-chair to 
be selected by the community RAB members as required in Sec.  202.6(b).

F. 202.7. Developing Operating Procedures

    One commenter stated that references to goals and objectives were 
inconsistent within the proposed rule. A few commenters stated that it 
is inappropriate for the installation co-chair to determine the goals 
and objectives of the RAB. The Department updated information on goals 
and objectives in the final rule. The rule states that, ``Clearly 
defiend goals and objectives for the RAB, as determined by the co-
chairs in consultation with the RAB,'' should be addressed. the 
preamble of the proposed rule provided further detail on the type of 
consultation that should take place, including that, ``the DoD 
installation co-chair will listen to, consider, and provide specific 
responses to the RAB members' comments before finalizing the goals and 
objectives.'' The language provided clearly indicates that the RAB as a 
whole participates in the development of goals and objectives.
    One commenter requested that there not be a requirement to publish 
and submit public notice of RAB meetings. This rule reflects 
Congressional requirements regarding public notices (see Sec. 317, Pub. 
L. 136-108, 117 Stat. 1393 (10 U.S.C. 2705(d)(2)); these notices may be 
purchased through ads in local newspapers.
    One commenter requested further clarification regarding a RAB 
member's function to provide feedback to other community members and to 
keep the public informed about the proceedings of the RAB. Reaching out 
to the broader community is an important role of community members. 
Clarification of a RAB member's function could be provided in the RAB's 
operating procedures.
    One commenter requested that RAB meetings be held off base due to 
increased security measures and the difficulty for some members to gain 
access to military installations. The Department considers additional 
language unnecessary because Section 202.9(a)(2) explicitly states 
that, ``Each RAB meeting shall be held * * * in a manner or place 
reasonably accessible.'' It is recommended that additional language 
regarding meeting locations be incorporated in the RAB's operating 
procedures. Another comment was received requesting child care and 
transportation for RAB meetings. Child care and transportation will not 
be provided for RAB meetings. The Department recognizes that this is a 
burden that RAB participants bear and appreciates their involvement 
despite these factors. It is important that participant involvement 
continue without DoD providing services that could be perceived as 
creating the potential for biased opinions regarding environmental 
restoration at DoD sites.
    Another commenter stated that all actions performed by a RAB should 
be available for public comment to ensure an open process. The 
Administrative Record provides the public with an open process for 
reviewing the actions performed by a RAB. Also, RAB meetings are open 
to public participation.
    One commenter recommended that public participants be afforded the 
opportunity to provide comments at RAB meetings. The Department has 
incorporated this recommendation in Sec.  202.9(a)(3) to read, ``Open 
solicitation of public comments shall be permitted, and members of the 
public will have a designated time on the agenda to speak to the RAB 
committee as a whole.''
    One commenter stated that the preamble and proposed rule were 
inconsistent in their descriptions regarding the role of the RAB in 
developing operating procedures. DoD has incorporated language to state 
that each RAB develops its own operating procedures and that the co-
chairs are responsible for carrying them out.
    One commenter stated that copies of all materials presented at RAB 
meetings, including readable maps, should be available for RAB members 
and the public. The Department encourages the distribution of 
presentation materials to RAB meeting participants and requires that 
these materials be included in the information repository or 
administrative record as appropriate and when security concerns allow.
    One commenter requested that a RAB be able to exercise its 
authority to change or reduce the frequency of the meeting schedule as 
needed through its operating procedures. The Department agrees with the 
commenter and would like to call attention to Section 202.7(a)(5) which 
indicates that the operating procedures will address meeting frequency 
and location.
    One commenter requested a specific timeframe for the distribution 
of meeting agendas. Another commenter requested clarification that 
community members play a key role in the development of the meeting 
agenda. The Department recommends that if a RAB is facing difficulty 
distributing meeting agendas, specific recommendations for a timeframe 
to distribute meeting agendas be made in that RAB's operating 
procedures. It is impractical and inflexible to set out a specific 
timeframe for RABs to distribute meeting agendas. The Department agrees 
that the community should play a key role in the development of the 
meeting agenda, and for this reason, this language was included as a 
discussion item in the RAB's operating procedures Sec.  202.7(a)(13).
    Several commenters offered supportive statements on the provisions 
for developing operating procedures. One commenter felt that the 
operating procedures would work well for existing RABs. In addition, 
commenters felt that it is appropriate for a RAB to develop specific 
operating procedures tailored to the needs of that individual RAB.

[[Page 27614]]

G. 202.8. Training RAB Members

    Several comments were received pertaining to training for RAB 
members. A few commenters suggested that training for RABs has been 
inadequate. The rule has been modified to incorporate comments received 
that suggest improved language relevant to training. One commenter 
stated that training that is ``unique to and mutually benefits'' RABs 
is not a workable standard. The text was revised to indicate that 
training would be site-specific and beneficial to RAB members. The 
Department also expanded this section to recommend training for RAB 
members that includes clarification of the purpose and responsibilities 
of RABs, familiarization with cleanup technologies, chemicals of 
concern, sampling protocols, and information about the availability of 
independent technical advice and document review through EPA's 
Technical Assistance Grant (TAG) program and DoD's Technical Assistance 
for Public Participation (TAPP) program.

H. 202.9. Conducting RAB Meetings

    One commenter stated that copies of all materials presented at RAB 
meetings, including readable maps, should be available to RAB members 
and the public. The Department encourages the distribution of 
presentation materials and readable maps to all RAB meeting 
participants as appropriate. However, it may not be appropriate in all 
cases for maps to be distributed to the community due to increased 
security measures at many installations.
    The Department received several comments regarding the RAB voting 
practices. DoD would like to make clear that voting or polling members 
is not a requisite action of RABs. comments stated that DoD members of 
the RAB should not be allowed to vote and that only RAB community 
members should have voting privileges. The Department has modified the 
language in the rule to assert that each RAB member may provide advice 
as an individual; however, when a RAB decides to vote or poll for 
consensus, only community members should participate. The Department 
will not be obligated by votes or consider voting results to be more 
important than the advice of an individual RAB member.
    One commenter requested clarification on whether publications 
listed on Web sites would meet the requirements of ``publishing meeting 
notices in a local newspaper of general circulation.'' The Department 
clarifies that publicizing meeting notices on Web sites would not meet 
the requirements of publishing notices in local newspapers. Posting 
meeting notices on Web sites is a good practice, but should be done in 
addition to local newspaper requirements.
    The Department received a few comments regarding the procedures for 
recording, approving, and distributing meeting minutes. One commenter 
requested that transcription services be provided to record RAB meeting 
minutes. Another commenter requested that the rule set out a specific 
timeframe for the preparation and distribution of meeting minutes. In 
recognition of the fact that this final rule was developed to maximize 
flexibility for RAB members and installations nationwide, the 
Department has modified the language in the operating procedures 
Section 202.7(a)(4), recommending that each RAB develop a procedure for 
recording, approving, and distributing meeting minutes. Specific 
regulations for recording, approving, and distributing meeting minutes 
for all RABs nationwide were not included in this rule.

I. 202.10. RAB Adjournment and Dissolution

    The Department received many comments regarding RAB adjournment. 
Many commenters disagreed with the Installation Commander having the 
authority to adjourn a RAB. One commenter recommended that the entire 
RAB agree in writing before it would be adjourned. RAB members are 
provided multiple opportunities for input should adjournment be 
considered. The Department would like to clarify that, as stated in 
Sec.  202.10(a)(2)(i) of the final rule, the Installation Commander 
shall, ``Consult with EPA, state, tribes, RAB members, and the local 
community, as appropriate, regarding adjourning the RAB and consider 
all responses before making a final decision.'' The Installation 
Commander, as the responsible, accountable Department of Defense 
contact, will have the authority to adjourn a RAB. The requirement for 
consultation protects the RAB from unilateral decisions made by DoD 
personnel.
    One commenter requested that ``with input from the community'' be 
added to the statement, ``an Installation Commander may adjourn.'' The 
Department agrees with this recommendation and has incorporated the 
language into Sec.  202.10(a)(1) of the final rule.
    Several other comments were received stating that RABs should not 
be considered for adjournment when records of decision (RODs) are 
signed or all remedies are in place. A commenter recommended that it 
would be better to adjourn when all sites reach the status of operating 
properly and successfully. The Department recognizes a RAB may not 
adjourn when all RODs are signed or all remedies are in place. Meetings 
should not need to be held as often, but additional input from the 
community may be necessary or helpful. RABs may want to decide in their 
operating procedures when it is appropriate or necessary to hold RAB 
meetings after all RODs are signed or all remedies are in place. It is 
not expected or required that a RAB adjourn at this time. The 
Department's experience has shown that after RODs are signed, 
communities may lose interest in the RAB. The Department provided a 
list of various circumstances that may lead an Installation Commander, 
in consultation with EPA, state, tribes, RAB members, and the local 
community, to adjourn a RAB.
    Several commenters requested that RABs not be adjourned when the 
installation is transferred or cleanup privatized. The Department 
believes that it may be impractical for DoD to continue to operate RABs 
at former installations that have been transferred out of DoD control 
and restoration responsibilities assumed by the transferee. In such 
cases, after inviting input from the community and consulting with EPA 
(at NPL sites) and State officials, DoD will endeavor to arrange to 
have the transferee provide an appropriate means for the public to 
review and comment upon post-transfer restoration response decisions.
    One commenter was concerned that decline in interest during long-
term management (LTM) would lead to RAB adjournment, suggesting that 
the RAB may decide to meet less frequently instead of adjourning. 
Although lack of interest during LTM may be lead to RAB adjournment, it 
would not be required, and a change in meeting frequency may be 
sufficient. The Department recommends that RABs describe in their 
operating procedures when it is appropriate or necessary to hold RAB 
meetings during LTM. Stakeholders are also encouraged to utilize their 
installation's point of contact (POC) for environmental restoration 
activities and the installation's Community Relations Plan (CRP) to 
remain involved, regardless of the status of a RAB. Information 
regarding environmental restoration activities will be shared with the 
public, (e.g., local media, public meetings, and Web sites) and the POC 
and CRP may assist interested stakeholders in accessing this 
information. If the RAB is adjourned

[[Page 27615]]

and the community becomes interested again, the RAB can be 
reestablished.
    A few comments were received stating that the process of 
adjournment and dissolution should be consistent. These processes were 
not made consistent, because they are employed in different situations, 
requiring different responses.
    The Department received many comments on RAB dissolution. Most of 
these commenters disagreed with the Installation Commander's role in 
the dissolution process. The commenters requested that a RAB only be 
dissolved through a collective decision-making process. The Department 
would like to clarify that the Installation Commander does not dissolve 
a RAB. The decision to dissolve a RAB is raised to the Military 
Component's Deputy Assistant Secretary for Environment or Environment, 
Safety and Occupational Health. The Installation Commander's role in 
dissolution includes multiple consultation and notification 
requirements with EPA, state, tribes, RAB members, and the local 
community, as appropriate, before providing a recommendation to the 
Military Component's Deputy Assistant Secretary for Environment or 
Environment, Safety and Occupational Health. One commenter requested 
that the notification process require a fact sheet and public meeting. 
These actions may be taken, but are not specific requirements. Another 
commenter stated that the Installation Commander should provide 
``responses to EPA and the state.'' The Installation Commander is 
required on multiple occasions to consult with EPA and the state, as 
appropriate.
    One commenter requested that after a RAB is adjourned or dissolved, 
Installation Commanders should continue to reassess community interest 
in RAB formation not only when environmental restoration activities are 
ongoing, but also when these activities may start up again. This 
comment is incorporated in the rule Sec.  202.10(c).
    One commenter stated that the process for reestablishing a 
previously adjourned or dissolved RAB is too time-intensive for 
communities that identify immediate health or environmental concerns. 
The Department would like to clarify that RABs are only one component 
of an installation's community outreach program. CERCLA (42 U.S.C. 
9601, et seq.) and the National Oil and Hazardous Substances Pollution 
Contingency Plan (40 CFR Part 300) require additional community 
involvement activities; therefore, an installation's RAB would not be a 
community's only method of addressing immediate health or environmental 
concerns. If an installation identifies immediate health or 
environmental concerns, the installation should engage appropriate 
stakeholders by notifying them and holding public meetings.

J. 202.12. Administrative Support and Eligible Expenses

    The Department received several comments regarding the funding of 
RABs. A few commenters opposed language stating that RABs are ``subject 
to the availability of funds.'' Another commenter stated that the 
Department should be required to report in local papers eligible 
expenses that are requested for RAB formation and operation that are 
not provided. One commenter requested that the Department clarify who 
pays for a RAB's administrative cost. Another commenter requested that 
the Department add informational materials relating to cleanup to the 
eligible administrative expenses. Regarding the comments that RABs 
should not be ``subject to the availability of funds,'' it should be 
clarified that the Department is authorized funding from Congress. DoD 
relies on this funding to support all programs; therefore, RABs remain 
``subject to the availability of funds.'' The Department does not 
require RABs to report in local papers eligible expenses that are 
provided for the operation and formation of RABs. This type of 
discussion is more appropriately conducted at RAB meetings. To clarify 
the responsibility for a RAB's administrative costs, the Department 
refers this commenter to Sec.  202.12(a) which states that the 
``installation shall provide administrative support to establish and 
operate a RAB.'' The Department directs the next commenter to Sec.  
202.12(b)(7) which states that eligible administrative expenses 
include, ``preparation of meeting agenda materials,'' which addresses 
the request for eligible expenses, to include creating information 
materials for RAB members as it relates to the cleanup.

K. 202.13. Technical Assistance for Public Participation

    One commenter stated that there was insufficient text regarding 
TAPP and suggested that section 202.13 be moved forward in the rule. 
The Department published a rule on TAPP that is located in 32 CFR Part 
203; DoD did not expand section 202.13 or reorganize the RAB rule. 
Another commenter recommended that the reference to ``in-house 
assistance to discuss technical issues'' be removed from the TAPP 
section and placed in the training section. The Department agrees and 
removed this language from the TAPP section. A final comment regarding 
the TAPP section suggested that its language was misleading and vague, 
because it was not identical to EPA's Technical Assistance Grant 
program. The Department's TAPP program is intended to be a different 
program; they are not identical.

L. 202.14. Documenting and Reporting Activities and Expenses

    The Department received two comments requesting a change in 
language where it is stated that the information repository be 
available at a ``single, publicly accessible location.'' The basis for 
this comment was that many installations may be located in more than 
one town, city, or county. The Department agrees that the language in 
the proposed rule was limiting and has removed the reference to a 
``single'' location in the final rule.
    A few commenters requested that copies of each RAB's activities and 
administrative expenses be provided to the RAB directly or be 
maintained in the information repository. RAB minutes should be 
maintained in the information repository. The Military Components are 
required to track and report this information to fulfill statutory 
annual reporting requirements established in 10 U.S.C. 2706(a)(2)(j). 
This Annual Report to Congress is made publicly available. Individuals 
seeking installation-specific data should request this information from 
the installation co-chair. If the installation co-chair is not 
responsive, the request can be referred to the Installation Commander.

M. Web sites

    Several commenters stated that the final rule should include 
language encouraging the use of Web sites as a communication tool for 
RABs. The Department agrees that Web sites are a valid and useful 
communication tool. Throughout the rule, DoD included language to 
reflect our encouragement and acceptance of this method of 
communicating. One commenter stated that each RAB should be required to 
set up and maintain a Web site. Although the Department encourages the 
use of Web sites in RAB communications, the Department declined to 
require that each RAB set up and maintain a Web site.

N. Role of an Installation Co-chair

    The Department received several comments regarding the role of 
installation co-chairs in RABs. One commenter suggested that the 
concept of co-chairs was impractical and that the ``installation co-
chair'' be replaced with

[[Page 27616]]

an ``installation representative.'' One commenter stated that the 
installation co-chairs had too much control in the formation and 
operation of RABs. Another commenter felt that it was inappropriate for 
the delegation of the installation co-chair role to go down the chain 
of command to civilian staff. Another commenter requested clarification 
on whether contractors could act on behalf of the installation co-
chair. The concept of co-chairs is not considered impractical based on 
RABs functioning appropriately with community and installation co-
chairs for the last 10 years. Although some have stated that the role 
of an installation co-chair unfairly exceeds that of a community co-
chair, great lengths have been taken not only to ensure fairness, but 
also to clarify the important balance between the installation and 
community co-chair. Government officials are responsible and must be 
the ones to make cleanup decisions for action on government lands.

O. Consistency

    The Department received several comments requesting that language 
provided in the preamble be consistent with language in the rule. The 
Department has reviewed and updated the final rule as appropriate.

P. Consideration of Comments

    The Department received several comments regarding a RAB's process 
for considering comments. One commenter requested additional language 
to discuss ``careful consideration.'' Another commenter recommended 
that language be added for comments to be considered as a consensus, as 
well as from individual RAB members. One commenter stated the 
installation be required to respond to all comments. This rule does not 
preclude any of the suggested comments. Recognizing that RABs are 
unique to each installation, the Department advises that RABs develop a 
process for considering comments in their operating procedures. See 
Sec.  202.7(a)(10). Although collective comments can be considered, the 
Department will not be obligated by the consensus. Comments will also 
be considered on an individual basis to ensure that every commenter is 
recognized.

Q. Comment Period

    One commenter requested that the comment period be extended in the 
Federal Register to ensure that all RABs were notified when the 
Register opened. Although the Department did not extend the comment 
period on the proposed rule, the rule was sent to all RABs prior to 
being published as a proposed rule. For informational purposes, DoD 
mailed the draft proposed rule to over 700 RAB co-chairs. Additionally, 
these 700 RAB co-chairs were provided copies of the proposed rule when 
it was published in the Federal Register.

R. Accountability

    The Department received many comments requesting that there be a 
mechanism to ensure the accountability of DoD actions on a RAB, 
specifically those actions of the installation co-chair. Several 
commenters stated that they were unaware of any oversight to ensure 
that the installation co-chairs were ``making a reasonable effort to 
ensure that a RAB performs its role as effectively as possible.'' Other 
commenters requested a method of redress should the RAB not be 
conducted in accordance with the rule. The Department has worked hard 
to ensure that chairmanship of the RAB is shared by the installation 
and community. The Department provides oversight for the RAB program, 
through the chain of command, to each Component's headquarters and to 
the Deputy Assistant Secretary. If DoD personnel take inappropriate 
actions, these actions would be addressed through the chain of command.

V. Administrative Requirements

A. Regulatory Impact Analysis Pursuant to Executive Order 12866

    Executive Order 12866 (58 FR 51735; October 4, 1993) requires each 
agency taking regulatory action to determine whether that action is 
``significant.'' The agency must submit any regulatory actions that 
qualify as ``significant'' to the Office of Management and Budget (OMB) 
for review, assess the costs and benefits anticipated as a result of 
the proposed action, and otherwise ensure that the action meets the 
requirements of the Executive Order. The Order defines ``significant 
regulatory action'' as one that is likely to result in a rule that may 
(1) have an annual effect on the economy of $100 million or more or 
adversely effect in a material way the economy, a sector of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or state, local, or tribal governments or 
communities; (2) create a 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 
programs 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.
    The Department has determined that the rule is not ``significant'' 
under Executive Order 12866 because it is not likely to result in a 
rule that will meet any of the four prerequisites.
    (1) The rule will not have an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy; a 
sector of the economy; productivity; competition; jobs; the 
environment; public health or safety; or state, local, or tribal 
governments or communities.
    (2) The rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    (3) The rule will not materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof.
    (4) The rule will not 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

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996), requires that an agency conduct a regulatory flexibility 
analysis when publishing a notice of rulemaking for any proposed or 
final rule. The regulatory flexibility analysis determines the impact 
of the rule on small entities (i.e., small businesses, small 
organizations, and small governmental jurisdictions). SBREFA amended 
the Regulatory Flexibility Act to require Federal agencies to state the 
factual basis for certifying that a rule will not have a significant 
economic impact on a substantial number of small entities.
    The Department hereby certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
The primary effect of the RAB rule will be to increase community 
involvement in DoD's environmental restoration program.

C. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, requires Federal agencies to assess the effects of their 
regulatory actions on state, local, and tribal governments and the 
private sector. Section 202 of the UMRA requires that, prior to 
promulgating proposed and

[[Page 27617]]

final rules with ``Federal mandates'' that may result in expenditures 
by state, local, and tribal governments, in the aggregate or by the 
private sector, of $100 million or more in any one year, the agency 
must prepare a written statement, including a cost-benefit analysis of 
the rule. Under Section 205 of the UMRA, DoD must also identify and 
consider a reasonable number of regulatory alternatives to the rule and 
adopt the least costly, most cost-effective, or least burdensome 
alternative that achieves the objectives of the rule.
    Certain exceptions to Section 205 exist. For example, when the 
requirements of Section 205 are inconsistent with applicable law, 
Section 205 does not apply. In addition, an agency may adopt an 
alternative other than the least costly, most cost-effective, or least 
burdensome in those cases where the agency publishes the final rule 
with an explanation of why such an alternative was not adopted. Section 
203 of the UMRA requires that the agency develop a small government 
agency plan before establishing any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments. The small government agency plan must include procedures 
for notifying potentially affected small governments, providing 
officials of affected small governments with the opportunity for 
meaningful and timely input in the development of regulatory proposals 
with significant Federal intergovernmental mandates, and informing, 
educating, and advising small governments on compliance with the 
regulatory requirements.
    The Department has determined that the rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for state, local, and tribal governments in the aggregate, or by the 
private sector in any one year. The term ``Federal mandate'' means any 
provision in statute or regulation or any Federal court ruling that 
imposes ``an enforceable duty'' upon state, local, or tribal 
governments, and includes any condition of Federal assistance or a duty 
arising from participation in a voluntary Federal program that imposes 
such a duty. The rule does not contain a Federal mandate because it 
imposes no enforceable duty upon state, tribal, or local governments.

D. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., 
prohibits a Federal agency from conducting or sponsoring a collection 
of information that requires OMB approval, unless such approval has 
been obtained and the collection request displays a currently valid OMB 
control number. Nor is any person required to respond to an information 
collection request that has not complied with the PRA. The term 
``collection of information'' includes collection of information from 
ten or more persons. The Department has determined that the PRA does 
not apply to this rule because, although the Department will collect 
information on RABs, it does not mandate that any person supply 
information. Therefore, the PRA does not apply to the rule.

E. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, Section 12(d) (15 U.S.C. 272 
note), directs Federal agencies to use technical standards developed by 
voluntary consensus standards bodies in its regulatory activities, 
except in those cases in which using such standards would be 
inconsistent with applicable law or otherwise impractical. ``Technical 
standards'' means performance-based or design-specific technical 
specifications and related management systems practices. Voluntary 
consensus means that the technical standards are developed or adopted 
by voluntary consensus standards organizations. In those cases in which 
a Federal agency does not use voluntary consensus standards that are 
available and applicable, the agency must provide OMB with an 
explanation.
    The rule does not involve performance-based or design-specific 
technical specifications or related management systems practices. The 
rule is therefore in compliance with the NTTAA.

F. Environmental Justice Requirements Under Executive Order 12898

    Under Executive Order 12898, ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations,'' a Federal agency must, where practicable and 
appropriate, collect, maintain, and analyze information assessing and 
comparing environmental and human health risks borne by populations 
identified by race, national origin, or income. To the extent practical 
and appropriate, Federal agencies must then use this information to 
determine whether their activities have disproportionately high and 
adverse human health or environmental effects on minority populations 
and low-income populations.
    At this time, the Department believes that no action will directly 
result from the rule that will have a disproportionately high and 
adverse human health and environmental effect on any segment of the 
population.

G. Federalism Considerations Under Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255; August 
10, 1999), establishes certain requirements for Federal agencies 
issuing regulations, legislative comments, proposed legislation, or 
other policy statements or actions that have ``Federal implications.'' 
Under the Executive Order, any of these agency documents or actions 
have ``Federal implications'' when they 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.'' Section 6 of 
the Executive Order prohibits any agency from issuing a regulation that 
has Federal implications, imposes substantial direct compliance costs 
on state and local governments, and is not required by statute. Such a 
regulation may be issued only if the Federal government provides the 
funds necessary to pay the direct compliance costs incurred by state 
and local governments, or the agency consults with state and local 
officials early in the process of developing the proposed regulation. 
Further, a Federal agency may issue a regulation that has federalism 
implications and preempts state law only if the agency consults with 
state and local officials early in the process of developing the 
proposed regulation.
    The rule does not have federalism implications because it will 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. 
The statute authorizing the Department's environmental restoration 
program, 10 U.S.C. 2701, clearly defines the rule and responsibilities 
of the Department with respect to state and local governments.

List of Subjects in 32 CFR Part 202

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


0
Title 32 of the Code of Federal Regulations, Chapter I, Subchapter M, 
is

[[Page 27618]]

amended by adding part 202 to read as follows:

PART 202--RESTORATION ADVISORY BOARDS

Subpart A--General Requirements
Sec.
202.1 Purpose, scope, definitions, and applicability.
202.2 Criteria for establishment.
202.3 Notification of formation of a restoration advisory board.
202.4 Composition of a RAB.
Subpart B--Operating Requirements
202.5 Creating a mission statement.
202.6 Selecting co-chairs.
202.7 Developing operating procedures.
202.8 Training RAB members.
202.9 Conducting RAB meetings.
202.10 RAB adjournment and dissolution.
202.11 Documenting RAB activities.
Subpart C--Administrative Support, Funding, and Reporting Requirements
202.12 Administrative support and eligible expenses.
202.13 Technical assistance for public participation.
202.14 Documenting and reporting activities and expenses.

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

Subpart A--General Requirements


Sec.  202.1  Purpose, scope, definitions, and applicability.

    (a) Purpose. The purpose of this part to establish regulations 
regarding the scope, characteristics, composition, funding, 
establishment, operation, adjournment, and dissolution of Restoration 
Advisory Boards (RABs).
    (b) Purpose and scope of responsibilities of RABs. The purpose of a 
RAB is to provide:
    (1) An opportunity for stakeholder involvement in the environmental 
restoration process at Department of Defense (DoD) installations. 
Stakeholders are those parties that may be affected by environmental 
restoration activities at the installation.
    (2) A forum for the early discussion and continued exchange of 
environmental restoration program information between DoD 
installations, regulatory agencies, tribes, and the community.
    (3) An opportunity for RAB members to review progress, participate 
in a dialogue with, and provide comments and advice to the 
installation's decision makers concerning environmental restoration 
matters. Installations shall give careful consideration to the comments 
provided by the RAB members.
    (4) A forum for addressing issues associated with environmental 
restoration activities under the Defense Environmental Restoration 
Program (DERP) at DoD installations, including activities conducted 
under the Military Munitions Response program (MMRP) to address 
unexploded ordnance, discarded military munitions, and the chemical 
constituents of munitions. Environmental groups or advisory boards that 
address issues other than environmental restoration activities are not 
governed by this regulation.
    (c) Definitions. In this section:
    (1) Community RAB member shall mean those individuals identified by 
community members and appointed by the Installation Commander to 
participate in a RAB who live and/or work in the affected community or 
are affected by the installation's environmental restoration program.
    (2) Environmental restoration shall include the identification, 
investigation, research and development, and cleanup of contamination 
from hazardous substances, including munitions and explosives of 
concern, and pollutants and contaminants.
    (3) Installation shall include active and closing DoD installations 
and formerly used defense sites (FUDS).
    (4) Installation Commander shall include the Commanding Officer or 
the equivalent of a Commanding Officer at active installations; the 
Installation Commander or other Military Department officials who close 
the facility and are responsible for its disposal at Base Realignment 
and Closure (BRAC) installations; or the U.S. Army Corps of Engineers 
Project Management District Commander at FUDS.
    (5) Public participants shall include anyone else who may want to 
attend the RAB meetings, including those individuals that may not live 
and/or work in the affected community or may not be affected by the 
installation's environmental restoration program but would like to 
attend and provide comments to the RAB.
    (6) Stakeholders are those parties that may be affected by 
environmental restoration activities at an installation, including 
family members of military personnel and civilian workers, local and 
state governments and EPA for NPL properties, tribal community members 
and indigenous people, and current landowners, as appropriate.
    (7) Tribes shall mean any Federally-recognized American Indian and 
Alaska Native governments as defined by the most current Department of 
Interior/Bureau of Indian Affairs list of tribal entities published in 
the Federal Register pursuant to Section 104 of the Federally 
Recognized Tribe Act.
    (8) RAB adjournment shall mean when an Installation Commander, in 
consultation with the Environmental Protection Agency (EPA), state, 
tribes, RAB members, and the local community, as appropriate, close the 
RAB based on a determination that there is no longer a need for a RAB 
or when community interest in the RAB declines.
    (9) RAB dissolution shall mean when an Installation Commander, with 
the appropriate Military Component's Environmental Deputy Assistant 
Secretary's approval, disbands a RAB that is no longer fulfilling the 
intended purpose of advising and providing community input to an 
Installation Commander and decision makers on environmental restoration 
projects. Installation Commanders are expected to make every reasonable 
effort to ensure that a RAB performs its role as effectively as 
possible and a concerted attempt is made to resolve issues that affect 
the RAB's effectiveness. There are circumstances, however, that may 
prevent a RAB from operating effectively or fulfilling its intended 
purpose.
    (d) Other public involvement activities. A RAB should complement 
other community involvement efforts occurring at an installation; 
however, it does not replace other types of community outreach and 
participation activities required by applicable laws and regulations.
    (e) Applicability of regulations to existing RABs. The regulations 
in this part apply to all RABs regardless of when the RAB was 
established.
    (f) Guidance. The Office of the Deputy Under Secretary of Defense 
for Environment shall issue guidance regarding the scope, 
characteristics, composition, funding, establishment, operation, 
adjournment, and dissolution of RABs pursuant to this rule. The 
issuance of any such guidance shall not be a precondition to the 
establishment of RABs of the implementation of this part.


Sec.  202.2  Criteria for establishment.

    (a) Determining if sufficient interest warrants establishing a RAB. 
A RAB should be established when there is sufficient and sustained 
community interest, and any of the following criteria are met:
    (1) The closure of an installation involves the transfer of 
property to the community,
    (2) At least 50 local citizens petition the installation for 
creation of a RAB.
    (3) Federal, state, tribal, or local government representatives 
request the formation of a RAB, or

[[Page 27619]]

    (4) The installation determines the need for a RAB. To determine 
the need for establishing a RAB, an installation should:
    (i) Review correspondence files,
    (ii) Review media coverage,
    (iii) Consult local community members,
    (iv) Consult relevant government officials, and
    (v) Evaluate responses to communication efforts, such as notices 
placed in local newspapers and, if applicable, announced on the 
installations Web site.
    (b) Responsibility for forming or operating a RAB. The installation 
shall have lead responsibility for forming and operating a RAB.
    (c) Converting existing Technical Review Committees (TRCs) to RABs. 
In accordance with 10 U.S.C. 2705(d)(1), a RAB may fulfill the 
requirements of 10 U.S.C. 2705(c), which directs DoD to establish TRCs. 
DoD recommends that, where TRCs or similar advisory groups already 
exist, the TRC or similar advisory group be considered for conversion 
to a RAB, provided there is sufficient and sustained interest within 
the community.


Sec.  202.3  Notification of formation of a Restoration Advisory Board.

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


Sec.  202.4  Composition of a RAB.

    (a) Membership. At a minimum, each RAB shall include 
representatives from DoD and the community. RAB community membership 
shall be well balanced and reflect the diverse interests within the 
local community.
    (1) Government representation. The RAB may also include 
representatives from the EPA at the discretion of the Regional 
Administrator of the appropriate EPA Regional Office, and state, 
tribal, and local governments, as appropriate. At closing installations 
where BRAC Cleanup Teams (BCT) exist, representatives of the BCT may 
also serve as the government representative(s) of the RAB. The 
Department encourages individuals and agencies involved with BRAC to 
participate in RABs at closing installations.
    (2) Community representation. Community RAB members should live 
and/or work in the affected community or be affected by the 
installation's environmental restoration program. While DoD encourages 
individual tribal members to participate on RABs, RABs in no way 
replace or serve as a substitute forum for the government-to-government 
relationship between DoD and Federally-recognized tribes.
    (i) To support the objective selection of community RAB members, 
installations will use a selection panel comprised of community members 
to nominate community RAB members. The Installation Commander, in 
consultation with the state, tribal, and local governments and EPA, as 
appropriate, will identify community interests and solicit names of 
individuals who can represent these interests on the selection panel. 
The panel will establish the procedures for nominating community RAB 
members, the process for reviewing community interest, and criteria for 
selecting community RAB members. The panel will transmit the list of 
RAB nominees to the Installation Commander for appointment.
    (ii) Following the panel nominations, the Installation Commander, 
in consultation with the state and EPA, as appropriate, will review the 
nominations to ensure the panel fairly represents the local community. 
The Installation Commander will accept or reject the entire list of RAB 
nominees for appointment.
    (b) Chairmanship. Each RAB established shall have two co-chairs, 
one representing the Dod installation and the other the community. Co-
chairs shall be responsible for directing and managing the RAB 
operations.
    (c) Compensation for community members of the RAB. The community 
co-chair and community RAB members serve voluntarily. DoD will not 
compensate them for their participation.

Subpart B--Operating Requirements


Sec.  202.5  Creating a mission statement.

    The installation and community co-chair, in conjunction with the 
RAB members, shall determine the RAB mission statement in accordance 
with guidance provided by the DoD Components.


Sec.  202.6  Selecting co-chairs.

    (a) DoD installation co-chair. The DoD installation co-chair shall 
be selected by the Installation Commander or equivalent, or in 
accordance with Military Component-specific guidance.
    b. Community co-chair. The community co-chair shall be selected by 
the community RAB members.


Sec.  202.7  Developing operating procedures.

    Each RAB shall develop a set of operating procedures and the co-
chairs are responsible for carrying them out. Areas that should be 
addressed in the procedures include:
    (a) Clearly defined goals and objectives for the RAB, as determined 
by the co-chairs in consultation with the RAB,
    (b) Meeting announcements,
    (c) Attendance requirements of members at meetings,
    (d) Development, approval and distribution procedures for the 
minutes of RAB meetings,
    (e) Meeting frequency and location,
    (f) Rules of order,
    (g) The frequency and procedures for conducting training,
    (h) Procedures for selecting or replacing co-chairs and selecting, 
replacing, or adding RAB members,
    (i) Specifics on the size of the RAB, periods of membership, and 
co-chair length of service,
    (j) Review of public comments and responses,
    (k) Participation of the general public,
    (l) Keeping the public informed about proceedings of the RAB,
    (m) Discussing the agenda for the next meeting and issues to be 
addressed, and
    (n) Methods for resolving disputes.


Sec.  202.8  Training RAB members.

    Training is not required for RAB members. It may be advisable, 
however, to provide RAB members with some initial orientation training 
regarding the purpose and responsibilities of the RAB, familiarization 
on cleanup technologies, chemicals of concern, and sampling protocols, 
as well as informing them of the availability of independent technical 
advice and document review through EPA's Technical Assistant Grant 
program and DoD's Technical Assistance for Public Participation (TAPP) 
program, to enable them to fulfill their responsibilities. Training 
should be site-specific and beneficial to RAB members. The DoD 
installation may also provide in-house assistance to discuss technical 
issues. Funding for training activities must be within the scope of 
administrative support for RABs, as permitted in Sec.  202.12.


Sec.  202.9  Conducting RAB meetings.

    (a) Public participation. RAB meetings will be open to the public.
    (1) The installation co-chair shall prepare and publish a timely 
public notice in a local newspaper of general circulation announcing 
each RAB meeting. If applicable, it is recommended that the meeting 
also be announced on the installation's Web site.
    (2) Each RAB meeting shall be held at a reasonable time and in a 
manner or

[[Page 27620]]

place reasonably accessible to and usable by all participants, 
including persons with disabilities.
    (3) Presentation materials and readable maps should be provided to 
all meeting participants as appropriate.
    (4) Interested persons shall be permitted to attend, appear before, 
or file statements with any RAB, subject to such reasonable rules or 
regulations as may be prescribed. Open solicitation of public comments 
shall be permitted and members of the public will have a designated 
time on the agenda to speak to the RAB committee as a whole.
    (b) Nature of discussions. The installation shall give careful 
consideration to all comments provided by individual RAB members. Group 
consensus is not a prerequisite for RAB input. Each member of the RAB 
may provide advice as an individual; however, when a RAB decides to 
vote or poll for consensus, only community members should participate.
    (c) Meeting minutes. The installation co-chair, in coordination 
with the community co-chair, shall prepare the minutes of each RAB 
meeting.
    (1) The RAB meeting minutes shall contain a record of the persons 
present; a complete and accurate description of matters discussed and 
comments received; and copies of all reports received, issued, or 
approved by the RAB. The accuracy of all minutes shall be certified by 
the RAB co-chairs. RAB minutes should be kept in the information 
repository; however, if the RAB minutes reflect decision-making, copies 
should also be documented in the Administrative Record.
    (2) The records, reports, minutes, appendixes, working papers, 
drafts, studies, agenda, or other documents that were made available to 
or prepared for or by each RAB shall be available for public inspection 
and copying at a publicly accessible location, such as the information 
repositories established under the installation's Community Relations 
Plan, a public library, or in the offices of the installation to which 
the RAB reports, until the RAB ceases to exist.


Sec.  202.10   RAB adjournment and dissolution.

    (a) RAB adjournment.--(1) Requirements for RAB adjournment. An 
Installation Commander may adjourn a RAB with input from the community 
when there is no longer a need for a RAB or when community interest in 
the RAB no longer exists. An Installation Commander may consider 
adjourning the RAB in the following situations:
    (i) A record of decision has been signed for all DERP sites on the 
installation,
    (ii) An installation has achieved response complete at all sites 
and no further environmental restoration decisions are required,
    (iii) An installation has all remedies in place,
    (iv) The RAB has achieved the desired end goal as defined in the 
RAB Operating Procedures,
    (v) There is no longer sufficient, sustained community interest, as 
documented by the installation with RAB community members and 
community-at-large input, to sustain the RAB. The installation shall 
continue to monitor for any changes in community interest that could 
warrant reactivating or reestablishing the RAB, or
    (vi) The installation has been transferred out of DoD control and 
day-to-day responsibility for making restoration response decisions has 
been assumed by the transferee.
    (2) Adjournment procedures. If the Installation Commander is 
considering adjourning the RAB, the Installation Commander shall:
    (i) Consult with EPA, state, tribes, RAB members, and the local 
community, as appropriate, regarding adjourning the RAB and consider 
all responses before making a final decision.
    (ii) Document the rationale for adjournment in a memorandum in a 
memorandum for inclusion in the Administrative Record, notify the 
public of the decision through written notice to the RAB members and 
through publication of a notice in a local newspaper of general 
circulation, and describe other ongoing public involvement 
opportunities that are available if the Installation Commander decides 
to adjourn the RAB.
    (b) RAB dissolution.--(1) Requirements for RAB dissolution. An 
Installation Commander may recommend dissolution of a RAB when a RAB is 
no longer fulfilling the intended purpose of advising and providing 
community input to an Installation Commander and decision makers on 
environmental restoration projects as described in Sec.  202.1(b).
    (2) Dissolution procedures. If the Installation Commander is 
considering dissolving the RAB, the Installation Commander shall:
    (i) Consult with EPA, state, tribal and local government 
representatives, as appropriate, regarding dissolving the RAB.
    (ii) Notify the RAB community co-chair and members in writing of 
the intent to dissolve the RAB and the reasons for doing so and provide 
the RAB members 30 days to respond in writing. The Installation 
Commander shall consider RAB member responses, and in consultation with 
EPA, state, tribal and local government representatives, as 
appropriate, determine the appropriate actions.
    (iii) Notify the public of the proposal to dissolve the RAB and 
provide a 30-day public comment period on the proposal, if the 
Installation Commander decides to proceed with dissolution. At the 
conclusion of the public comment period, the Installation Commander 
will review the public comments, consult with EPA, state, tribal and 
local government representatives, as appropriate, and, if the 
Installation Commander still believes dissolution is appropriate, 
render a recommendation to that effect.
    (iv) Send the recommendation, responsiveness summary, and all 
supporting documentation via the chain-of-command to the Military 
Component's Environmental Deputy Assistant Secretary (or equivalent) 
for approval or disapproval. The Military Component's Environmental 
Deputy Assistant Secretary (or equivalent) shall notify the Office of 
the Deputy Under Secretary of Defense (Installations & Environment) (or 
equivalent) of the decision to approve or disapprove the request to 
dissolve the RAB and the rationale for that decision.
    (v) Document the recommendation, responsiveness summary, and the 
rationale for dissolution in a memorandum for inclusion in the 
Administrative Record, notify the public of the decision through 
written notice to the RAB members and through publication of a notice 
in a local newspaper of general circulation and describe other ongoing 
public involvement opportunities that are available, once the Military 
Component's Environmental Deputy Assistant Secretary (or equivalent) 
makes a final decision.
    (c) Reestablishing an adjourned or dissolved RAB. An Installation 
Commander may reestablish an adjourned or dissolved RAB if there is 
sufficient and sustained community interest in doing so, and there are 
environmental restoration activities still ongoing at the installation 
or that may start up again. Where a RAB is adjourned or dissolved and 
environmental restoration activities continue, the Installation 
Commander should reassess community interest at least every 24 months. 
When all environmental restoration decisions have been made and 
required remedies are in place and are properly operating

[[Page 27621]]

at an installation, reassessment of the community interest for 
reestablishing the RAB is not necessary. When additional environmental 
restoration decisions have to be made resulting from subsequent 
actions, such as long-term management and five-year reviews, the 
installation will reassess community interest for reestablishing the 
RAB. Where the reassessment finds sufficient and sustained community 
interest at previously adjourned or dissolved RABs, the Installation 
Commander should reestablish a RAB. Where the reassessment does not 
find sufficient and sustained community interest in reestablishing the 
RAB, the Installation Commander shall document in a memorandum for the 
record the procedures followed in the reassessment and the findings of 
the reassessment. This document shall be included in the Administrative 
Record for the installation. If there is interest in reestablishment at 
a previously dissolved RAB, but the Installation Commander determines 
that the same conditions exist that required the original dissolution, 
he or she will request, through the chain-of-command to the Military 
Component's Deputy Assistant Secretary, an exception to reestablishing 
the RAB. If those conditions no longer exist at a previously dissolved 
RAB, and there is sufficient and sustained interest in reestablishment, 
the Installation Commander should recommend to the Deputy Assistant 
Secretary that the RAB be reestablished. The Deputy Assistant Secretary 
will take the Installation Commander's recommendation under advisement 
and may approve that RAB for reestablishment.
    (d) Public comment. If the Installation Commander intends to 
recommend dissolution of a RAB or reestablish a dissolved RAB, the 
Installation Commander shall notify the public of the proposal to 
dissolve or reestablish the RAB and provide a 30-day public comment 
period on the proposal. At the conclusion of the public comment period, 
the Installation Commander shall review public comments; consult with 
EPA and state, tribal, or local government representatives, as 
appropriate; prepare a responsiveness summary; and render a 
recommendation. The recommendation, responsiveness summary, and all 
supporting documentation should be sent via the chain-of-command to the 
Military Component's Environmental Deputy Assistant Secretary (or 
equivalent) for approval or disapproval. The Installation Commander 
shall notify the public of the decision.


 Sec.  202.11  Documenting RAB activities.

    (a) The installation shall document information on the activities 
of a RAB in the Information Repository. These activities shall include, 
but are not limited to:
    (1) Installation's efforts to survey community interest in forming 
a RAB,
    (2) Steps taken to establish a RAB where there is sufficient and 
sustained community interest,
    (3) How the RAB related to the overall community involvement 
program, and
    (4) Steps taken to adjourn, dissolve, or reestablish the RAB.
    (b) When RAB input has been used in decision-making, it should be 
documented as part of the Administrative Record.

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


 Sec.  202.12  Administrative support and eligible expenses.

    (a) Administrative support. Subject to the availability of funding, 
the installation shall provide administrative support to establish and 
operate a RAB.
    (b) Eligible administrative expenses for a RAB. The following 
activities specifically and directly associated with establishing and 
operating a RAB shall qualify as an administrative expense of a RAB:
    (1) RAB establishment.
    (2) Membership selection.
    (3) Training if it is:
    (i) Site specific and benefits the establishment and operation of a 
RAB.
    (ii) Relevant to the environmental restoration activities occurring 
at the installation.
    (4) Meeting announcements.
    (5) Meeting facilities.
    (6) Meeting facilitators, including translators.
    (7) Preparation of meeting agenda materials and minutes.
    (8) RAB-member mailing list maintenance and RAB materials 
distribution.
    (c) Funding. Subject to the availability of funds, administrative 
support to RABs may be funded as follows:
    (1) At active installations, administrative expenses for a RAB 
shall be paid using funds from the Military Component's Environmental 
Restoration accounts.
    (2) At BRAC installations, administrative expenses for a RAB shall 
be paid using BRAC funds.
    (3) At FUDS, administrative expenses for a RAB shall be paid using 
funds from the Environmental Restoration account for the Formerly Used 
Defense Sites program.


Sec.  202.13  Technical assistance for public participation.

    Community members of a RAB or TRC may request technical assistance 
for interpreting scientific and engineering issues with regard to the 
nature of environmental hazards at the installation and environmental 
restoration activities conducted, or proposed to be conducted, at the 
installation in accordance with 10 U.S.C. 2705(e) and the TAPP 
regulations located in 32 CFR Part 203.


Sec.  202.14  Documenting and reporting activities and expenses.

    The installation at which a RAB is established shall document the 
activities and meeting minutes and record the administrative expenses 
associated with the RAB in the information repository at a publicly 
accessible location. Installations shall use internal department and 
Military Component-specific reporting mechanisms to submit required 
information on RAB activities and expenditures.

    Dated: May 1, 2006.
L.M. Bynum,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 06-4246 Filed 5-11-06; 8:45 am]
BILLING CODE 5001-06-M