[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