[Federal Register Volume 77, Number 153 (Wednesday, August 8, 2012)]
[Proposed Rules]
[Pages 47337-47350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19302]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 218

RIN 0596-AD07


Project-Level Predecisional Administrative Review Process

AGENCY: Forest Service, USDA.

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule establishes the sole process by which the 
public may file objections seeking predecisional administrative review 
for proposed projects and activities implementing land management 
plans, including projects authorized pursuant to the Healthy Forests 
Restoration Act of 2003 (HFRA). The Consolidated Appropriations Act of 
2012 directs the Secretary of Agriculture, acting through the Chief of 
the Forest Service, to provide for a pre-decisional objection process 
for proposed actions of the Forest Service concerning projects and 
activities implementing land and resource management plans developed 
under the Forest and Rangeland Renewable Resources Planning Act of 
1974, and documented with a Record of Decision (ROD) or Decision Notice 
(DN). Section 428 further directs the Secretary to apply these 
procedures in lieu of the Appeal Reform Act (ARA), which provided for a 
postdecisional administrative appeal process. The proposed rule also 
establishes procedures concerning how the Forest Service will provide 
notice for such projects and activities. The Forest Service invites 
written comments on this proposed rule.

DATES: Comments on this proposed rule must be received in writing by 
September 7, 2012. Comments concerning the information collection 
requirements contained in this proposed rule must be received in 
writing by October 9, 2012.

ADDRESSES: Send written comments to USDA Forest Service, Objection 
Regulation Comments, P.O. Box 4654, Logan, UT 84323; by electronic mail 
to [email protected]; by fax to 435-750-8799; or by the 
electronic process available at the Federal eRulemaking portal at 
http://www.regulations.gov.
    The public may inspect comments received on this proposed rule at 
USDA, Forest Service, Ecosystem Management Coordination Staff, 1400 
Independence Ave. SW., Washington, DC, between 8:00 a.m. and 4:30 p.m. 
on business days. Those wishing to inspect comments should call ahead 
202-205-0895 to facilitate an appointment and entrance to the building.
    Comments concerning the information collection requirements 
contained in this proposed rule should reference OMB No. 0596-0172 and 
the docket number, date, and page number of this issue of the Federal 
Register. Comments concerning the information collection requirements 
may be submitted as provided for comments on the proposed rule. For 
more information, see SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: Deb Beighley, Assistant Director, 
Appeals and Litigation at 202-205-1277.
    Individuals using telecommunication devices for the deaf (TDD) may 
call the Federal Information Relay Service (FIRS) at 1-800-877-8339 
between 8:00 a.m. and 8:00 p.m. Eastern Standard Time, Monday through 
Friday.

SUPPLEMENTARY INFORMATION: If comments are sent by electronic mail or 
by fax, the public is requested not to send duplicate written comments 
via regular mail. Please confine written comments to issues pertinent 
to the proposed rule; explain the reasons for any recommended changes; 
and, where possible, reference the specific section or paragraph being 
addressed.
    The http://www.regulations.gov Web site is an ``anonymous access'' 
system, which means the Forest Service will not know your identity or 
contact information unless you provide it in the body of your comment. 
If you send an email comment directly to the Forest Service without 
going through http://www.regulations.gov, your email address will be 
automatically captured and included as part of the comment that is 
placed in the public record. If you submit an electronic comment, the 
Forest Service recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If the Forest Service cannot read your comment due to technical 
difficulties and cannot contact you for clarification, the Agency may 
not be able to consider your comment. Electronic files should avoid the 
use of special characters, any form of encryption, and be free of any 
defects or viruses.
    All timely and properly submitted comments, including names and 
addresses when provided, are placed in the record and are available for 
public inspection and copying. The public may inspect comments received 
on this proposed rule at USDA, Forest Service,

[[Page 47338]]

Ecosystem Management Coordination Staff, 1400 Independence Ave. SW., 
Washington, DC, between 8:00 a.m. and 4:30 p.m. on business days. Those 
wishing to inspect comments should call ahead 202-205-0895 to 
facilitate an appointment and entrance to the building.

Background

    On December 23, 2011, President Obama signed into law the 
Consolidated Appropriations Act of 2012. Section 428 of the Act 
(hereafter ``Section 428'') directs the Secretary of Agriculture 
(Secretary), acting through the Chief of the Forest Service (Chief), to 
provide for a predecisional objection process based on Section 105(a) 
of the Healthy Forests Restoration Act of 2003 (HFRA) (16 U.S.C. 
6515(a), for proposed actions of the Forest Service concerning projects 
and activities implementing land management plans and documented with a 
Record of Decision or Decision Notice. The Act further directs that 
these procedures be applied in lieu of subsections (c), (d), and (e) of 
Section 322 of Public Law 102-381 (16 U.S.C. 1612 note) (Appeal Reform 
Act or ARA) that collectively provide for a postdecisional 
administrative appeal process for projects and activities implementing 
land management plans. The Department has developed this proposed rule 
to: (1) Preserve the predecisional objection process already in place 
for proposed hazardous fuel reduction projects authorized under the 
HFRA; (2) expand the scope of that objection process to include other 
covered actions; and (3) establish a process for providing the notice 
and comment provisions of the ARA.
    President Bush signed into law the Healthy Forests Restoration Act 
of 2003 (HFRA) to reduce the threat of destructive wildfires while 
upholding environmental standards and encouraging early public input 
during planning processes. One of the provisions of the Act (sec. 105) 
required the Secretary to issue an interim final rule establishing a 
predecisional administrative review process for hazardous fuel 
reduction projects authorized by the HFRA. The interim final rule was 
promulgated at 36 CFR part 218 on January 9, 2004 (69 FR 1529), 
followed by a final rule on September 17, 2008 (73 FR 53705) that 
incorporated the results of public comment and the knowledge gained 
through the Agency's experience with implementing the rule.
    Congress enacted the ARA in 1992. The ARA states that ``the 
Secretary of Agriculture, acting through the Chief of the Forest 
Service, shall establish a notice and comment process for proposed 
actions of the Forest Service concerning projects and activities 
implementing land and resource management plans * * * and shall modify 
the procedure for appeals of decisions concerning such projects.'' ARA 
section 322(a), 106 Stat. 1419. The ARA (ARA Sec.  322(c), 106 Stat. 
1419) further provided that qualifying individuals may file an appeal 
``[n]ot later than 45 days after the date of issuance of a decision of 
the Forest Service concerning actions referred to in subsection (a) * * 
*.'' The Department promulgated implementing regulations for the ARA at 
36 CFR part 215 in 1993 and revised them in 2003.
    Prior to passage of the HFRA, public notice and comment for 
hazardous fuel reduction project proposals, and appeal of the 
decisions, would have been conducted according to the procedures set 
out at 36 CFR part 215. The HFRA objection rule exempts qualifying 
hazardous fuel reduction projects from the notice, comment, and appeal 
procedures set out at part 215 and establishes separate objection 
procedures specifically for hazardous fuel reduction projects, pursuant 
to 36 CFR part 218.
    Now, through Section 428, Congress has directed the Secretary to 
apply the predecisional objection established in part 218, in place of 
the appeal provisions at part 215, for proposed actions regarding 
projects and activities implementing land management plans and 
documented with a Record of Decision (ROD) or Decision Notice (DN). The 
Department has determined the most appropriate way to carry out this 
direction is to revise part 218, by amending subparts A and B, and 
creating subpart C.
    Subpart A includes general provisions applicable to HFRA and non-
HFRA covered projects and activities.
    Subpart B provides additional direction that is specific to 
proposed actions not authorized under the HFRA. This subpart includes 
the notice and comment requirements directed by subsection (b) of the 
ARA and the emergency situation provisions directed by Section 428.
    Subpart C provides additional direction that is specific to 
proposed hazardous fuel reduction projects authorized under the HFRA.

Administrative Review of Categorically Excluded Projects

    On March 19, 2012, the U.S. District Court for the Eastern District 
of California found that Forest Service regulations exempting project 
decisions from notice, comment, and appeal when they are categorically 
excluded from analysis under the National Environmental Policy Act 
(NEPA) are in violation of the ARA and enjoined the Forest Service from 
following these regulations. The court's nationwide injunction 
precludes use of Forest Service notice, comment, and administrative 
appeal regulations, 36 CFR 215.4(a) and 215.12(f). The court held the 
215 regulations conflict with the plain language of the ARA, claiming 
that Congress did not intend to exclude from notice, comment, and 
appeal actions that were categorically excluded from documentation 
under the NEPA. The Department promulgated the regulations pursuant to 
the Agency's reasonable interpretation of the ARA and the Government 
has appealed the ruling to the U.S. Court of Appeals for the Ninth 
Circuit.
    The Department is concerned that statements made in the District 
Court's opinion regarding prudential mootness of litigation concerning 
36 CFR part 215 may confuse the public regarding the Congressional 
intent with respect to the enactment and promulgation of regulations 
implementing Section 428. While the District Court noted that Section 
428 did not change Section 322(a) and (b) of the ARA, the Court's order 
did not address the full implication of the enactment of Section 428. 
Section 428 is an amendment of Section 322, and the revised statutory 
scheme must be read as whole; the existing provisions of Section 322 
must be read in harmony with the new provisions of Section 428.
    Section 322(a) commands an integrated regulatory system of notice, 
comment, and appeal for covered projects. Section 322(b) establishes 
the notice system for such projects. Through Section 428, the post-
decisional appeal system of Section 322(c)-(e) has been replaced by a 
predecisional objection process that is similar to the HFRA 
administrative review process in that it is exclusively applicable to 
projects and activities evaluated in an environmental analysis (EA) or 
environmental impact statement (EIS). Congress gave no indication that 
it intended differential treatment between the scope of coverage for 
the notice and comment provisions for ``such projects'' compared to the 
activities to be covered by the new predecisional objection process 
(which are expressly limited in the statutory text to decisions 
documented in DNs and RODs).
    The Department is aware that plaintiffs proffered an alternative 
view suggesting Congress intended to create a third separate 
administrative review system with the result being the use of

[[Page 47339]]

three appeal processes: an administrative review system under Section 
105 of HFRA for HFRA predecisional objections; an administrative review 
system under Section 428 establishing a non-HFRA predecisional 
objection process; and an independent, residual post-decisional appeal 
system under Section 322.
    During the pendency of the appeal of the District Court's ruling, 
the Forest Service has instructed its line officers to abide and comply 
with the District Court's orders. Further, the Department is aware that 
Congress is presently considering legislation clarifying notice, 
comment, and appeal of categorical exclusions. Rather than delay in 
their entirety the implementation regulations under Section 428, the 
Department has elected to move forward with the portion of the Section 
428 rulemaking that addresses projects associated with EAs and EISs, 
but reserves and defers promulgation of regulations addressing 
categorically excluded projects and activities. Within the comment 
period provided for by this proposed rule, the public may provide 
written comments concerning treatment of such projects in the future by 
the Forest Service.

Use of Legal Notices To Initiate Opportunities To Comment and Object

    Since 1990 the Agency has relied on the publication of notices in 
the legal notices section of newspapers of general circulation as the 
means to make interested and affected parties aware that a plan or 
project decision has been made. Even more significantly, because the 
legal notice is not the only means used to provide decision 
notification, the publication date of legal notices has been used as 
the sole trigger initiating the start of an appeal filing period. 
Beginning in 1993, legal notices have also been used to notify and 
initiate the 30-day comment period mandated by the Appeal Reform Act.
    Prior to 1990, the beginning of appeal filing periods were based on 
the date of the plan or project decision. Deciding officers were 
required to promptly mail the appropriate decision document to those 
who had requested it and those who were known to have participated in 
the decision making process, with the intention that those wishing to 
utilize the administrative appeal process would have the maximum time 
available to them.
    The switch to requiring the publication of legal notices and using 
the publication date to initiate the appeal filing period was made to 
address problems notifying all potentially affected individuals and 
organizations in enough time that they had the full time available to 
file an appeal. The causes of these problems included inadvertent 
failure to identify all interested or potentially affected individuals 
and organizations, and the delay between when a decision was signed and 
when a potential appellant received a mailed notice of the decision or 
otherwise learned of the decision. The reliance on a legal notice 
publication date was seen as providing an additional and reliable 
source of notification that would maximize the time available for 
filing a notice of appeals, and establishing a uniform, service-wide 
mechanism that provides convincing evidence that the Agency has given 
timely and constructive notice of decisions to the public.
    Although legal notices have been used, generally with success, in 
this manner for the past two decades, they are still an imperfect 
solution for some potential appellants. Not all appellants have ready 
access to the newspaper of record used for the project decision they 
are interested in and, even if access is available, it can be a burden 
to keep close watch on the legal notices section of a paper for the 
appearance of a notice announcing the decision for a particular 
project.
    There are also issues from the Agency's perspective with the use of 
legal notices. Some newspapers only publish weekly, which can cause 
delays in getting a notice published in a timely manner. Also, legal 
notices can be quite expensive, costing in the hundreds of dollars in a 
newspaper of larger circulation.
    The rationale in support of, and the arguments against, the use of 
legal notices have changed little in the past 20 years. One thing that 
has changed is the availability of new communications technology, 
including email, web pages, and social media. The Department believes 
that within these tools is the potential to provide more effective 
means of providing timely notifications to those who may be interested 
in providing comment on a project proposal or who wish to be eligible 
to submit an objection for administrative review. Even so, these 
technologies may still not be a solution for all. As widespread as 
communications technology has become, it is still not used by all 
citizens.
    This proposed rule does not vary from the standard practice of 
requiring legal notices to notify and establish the beginning dates for 
the 30-day comment periods and objection filing periods. Still, the 
Department is open to suggestions on an improved means of providing 
timely notification to all interested and affected individuals so that 
the full comment period or objection filing period is available. 
Comments and suggestions concerning this aspect of the administrative 
review procedures will be considered when developing a final rule.

Page Limits for Objections

    Several persons within and outside the Forest Service have 
suggested imposing a limitation on the number of pages permitted for 
objections and appeals. These proponents contend that limiting the 
number of pages would encourage a more focused presentation of issues 
regarding an Agency proposal or decision and provide for a more 
effective review of the issues being raised.
    The Agency's appeal and objection regulations have had no 
limitations on the number of pages that could be filed, and 
historically these filings have included from 1 to well over 100 pages, 
exclusive of attachments or exhibits. The Department of the Interior's 
Board of Land Appeals currently imposes a 30-page limitation on 
appeals, and some have suggested this would be an appropriate 
limitation for Forest Service objections and appeals. Consideration 
would also be given to including documents incorporated by reference, 
attachments, or exhibits as part of any page limitation that might be 
imposed.
    Although there is no page limitation on objections included in this 
proposed rule, the Department is taking public comment on this topic 
now for consideration when a final rule is developed.

Section-by-Section Description of Proposed Rule

Part 218--Project-Level Predecisional Administrative Review Process

Subpart A--General Provisions

Section 218.1--Purpose and Scope
    This section describes the purpose and scope of a predecisional 
administrative review (hereinafter ``objection'') process for projects 
and activities implementing land management plans, including proposed 
hazardous fuel reduction projects authorized by the Healthy Forests 
Restoration Act (HFRA).
Section 218.2--Definitions
    This section defines some of the commonly used terms and phrases in 
the proposed rule.
Section 218.3--Reviewing Officer
    Paragraph (a) of this section establishes who has the authority to 
carry out the responsibilities of the reviewing officer.

[[Page 47340]]

    Paragraph (b) provides the reviewing officer with the authority to 
make all procedural determinations not specifically explained in this 
part, including those procedures necessary to ensure compatibility, to 
the extent practicable, when undertaking a joint proposed project 
subject to each agency's administrative review procedures. The section 
also provides that such procedural determinations are not subject to 
further review.
Section 218.4--Proposed Projects and Activities Not Subject to 
Objection
    This section establishes that when no timely and qualifying 
comments (Sec. Sec.  218.2 and 218.25) are received, a proposed project 
or activity is not subject to objection. This is because there would be 
no eligible objectors (Sec.  218.5) if no timely and qualifying 
comments are submitted.
Section 218.5--Who May File an Objection
    This section of the rule identifies the qualifying requirements for 
who may file an objection under this subpart.
    Paragraph (a) provides that those individuals and non-Federal 
entities who have submitted specific and timely written comments 
regarding the proposed project or activity during a designated 
opportunity for public comment provided during preparation of an 
environmental assessment or environmental impact statement for the 
proposed project or activity are eligible to file an objection. 
Paragraph (a) further states that for a proposed project or activity 
described in an environmental impact statement, the opportunity for 
public comment would be fulfilled during scoping, by the formal comment 
process for draft environmental impact statements set forth in 40 CFR 
1506.10, and any other periods public comment is specifically 
requested. For proposed actions described in an environmental 
assessment, the opportunity for public comment will be fulfilled during 
scoping or any other periods public comment is specifically requested, 
as environmental assessments are not required to be circulated for 
public comment in draft form.
    Paragraph (b) states that when an organization submits specific 
written comments, eligibility is conferred on that organization only, 
not on individual members of that organization. The Department will 
treat an organization as its own entity for purposes of submitting 
comments and determining eligibility to file objections. The Department 
will not accept individual members of organizations to establish 
eligibility to file individual objections. Any individual member of an 
organization may submit written comments on his or her own behalf.
    Paragraph (c) clarifies that if an objection is submitted on behalf 
of a number of named individuals or non-Federal entities, each 
individual or entity listed must meet the eligibility requirement of 
having submitted specific written comments during scoping or the other 
opportunities to comment.
    Paragraph (d) states that Federal agencies are not allowed to file 
an objection. Other avenues are available to Federal agencies for 
working through concerns regarding a proposed action. It is expected 
that the various Federal agencies will work cooperatively during 
project development.
    Paragraph (e) allows Federal employees to file objections as 
individuals in a manner consistent with Federal conflict of interest 
requirements.
Section 218.6--Computation of Time Periods
    Paragraphs (a) and (b) describe how time periods are computed.
    Paragraph (c) states that the time to file an objection is 
determined exclusively by the publication date of the legal notice of 
the EA or final EIS, and draft DN or ROD, in the newspaper of record 
or, when the Chief is the responsible official, in the Federal 
Register. Although other notifications may be provided, only the legal 
notice or Federal Register publication dates may be used to calculate 
the objection filing period.
    Paragraph (d) states that time extensions are not permitted except 
as necessary to avoid having a time period end on a non-business day or 
as permitted at Sec.  218.26.
Section 218.7--Giving Notice of Objection Process for Proposed Projects 
and Activities Subject to Objection
    This section describes the methods to be used when giving notice 
that an EA or final EIS, and draft Decision Notice (DN) or Record of 
Decision (ROD) for a proposed action is available for administrative 
review and how the proposed action must be described in this notice.
    Paragraph (a) states that the responsible official should provide 
early disclosure during scoping and in the EA or EIS, whether a 
proposed action is a hazardous fuel reduction project under the HFRA or 
other project implementing a land management plan, and which part 218 
objection procedures will be applicable.
    Paragraph (b) requires that the responsible official must make 
available the EA or final EIS, and a draft DN or ROD, to those who have 
requested the documents or meet the objection eligibility requirements 
at Sec.  218.4(a). Making a draft decision document available at this 
time provides the public with a clear statement of the Agency's intent 
and rationale for the decision to be made following the objection 
process, even more so than that provided by identification of a 
preferred alternative in the NEPA analysis documents.
    Paragraph (c) states that the responsible official must announce 
through notice in a previously designated newspaper of record when an 
EA or final EIS, and draft DN or ROD, are available for administrative 
review, except for proposals of the Chief where Federal Register 
publication is provided. The legal notice begins the objection-filing 
period of either 30 or 45 days as specified at Sec. Sec.  218.26(a) and 
218.33(a).
    Paragraph (c) further outlines the format and content of the legal 
notice, including a statement that incorporation of documents by 
reference is permitted only as provided for at Sec.  218.7(b). This 
provision ensures that the contents of an objection, including all 
attachments, are readily available to the reviewing officer for timely 
completion of the objection process. Similarly, objectors cannot meet 
the requirements of this process by attempting to incorporate 
substantive materials and arguments from other objectors. The Federal 
courts have taken a similar view of such procedural strategies; see 
Swanson v. U.S. Forest Service, 87 F.3d 339 (9th Cir. 1996).
    The content requirement for a legal notice also includes a 
statement that issues raised in objections must be based on previously 
submitted specific written comments regarding the proposed project or 
activity unless the issue is based on new information arising after the 
opportunities for comment.
    Paragraph (d) requires annual publication in the Federal Register 
of the newspapers to be used for giving legal notice of proposed 
actions subject to this rule.
Section 218.8--Filing an Objection
    This section provides information on how to file an objection.
    Paragraph (a) provides for an objection to be filed with the 
reviewing officer in writing.
    Paragraph (b) provides that incorporation of documents by reference 
shall not be allowed except for certain specified documents. The 
reasons for

[[Page 47341]]

not permitting other documents by reference are addressed in preceding 
Sec.  218.6(c).
    Paragraph (c) specifies that issues raised in objections must be 
based on previously submitted specific written comments regarding the 
proposed project or activity and attributed to the objector. This 
requirement does not apply to objection issues based on new information 
arising after the opportunities for comment. The paragraph also places 
the burden of demonstrating compliance with this requirement on the 
objector.
    Paragraph (d) provides a detailed list of information that must be 
included in an objection. The information in the list is needed for 
timely and effective processing and review of the objections.
Section 218.9--Evidence of Timely Filing
    This section describes the objector's responsibilities for ensuring 
the timely filing of an objection, including the means to be used by 
the Forest Service for determining timeliness.
Section 218.10--Objections Set Aside From Review
    Paragraph (a) specifies when the reviewing officer must set aside 
an objection without review or response on the concerns raised, 
including when an objection is not filed within the objection period; 
the proposed project is not subject to the procedures of this part and, 
therefore, is not subject to the objections process; the objector did 
not submit specific written comments regarding the proposed project or 
activity during the opportunities for public comment; there is 
insufficient information to review and respond; the objector withdraws 
the objection; the objector's identity is not provided or cannot be 
determined from the signature; or the objection is illegible for any 
reason.
    Paragraph (b) states that when an objection is set aside and not 
processed, the reviewing officer must give written notice to the 
objector and responsible official, and document the set aside in the 
appeal record.
Section 218.11--Resolution of Objections
    This section describes the objection resolution process.
    Paragraph (a) allows for either the reviewing officer or the 
objector to request a meeting to discuss the objection and attempt 
resolution. The reviewing officer has the discretion to determine if 
sufficient time remains in the review period to make a meeting 
practical. To assist with identifying areas of potential resolution, 
the responsible official should be a participant in objection 
resolution meetings. The paragraph further requires that all meetings 
with objectors are open to the public.
    Paragraph (b) provides for a written response to the objection. The 
response is not required to be point-by-point and the reviewing officer 
may issue a single response to multiple objections of the same proposed 
action. Paragraph (b) also states that there is no higher level review 
of the reviewing officer's written response to the objection.
Section 218.12--Timing of Project Decision
    This section describes when a responsible official may make a final 
decision regarding a proposed action subject to the provisions of this 
part.
    Paragraph (a) allows decisions to be made on proposed actions only 
when responses have been made to all objections, and paragraph (b) 
specifies that the decisions documented in a DN or ROD must be 
consistent with the reviewing officer's response to the objections.
    Paragraph (c) states that a decision can be made on a proposed 
action on the 5th business day following the close of the filing period 
when no timely objections are filed. This is to allow for receipt of 
any objections that might have been mailed and postmarked prior to the 
close of the objection filing period. National Environmental Policy Act 
regulations (40 CFR 1506.10) require a minimum of 30 days between 
notice of the final environmental impact statement and issuance of a 
ROD when administrative appeal of the ROD is not available.
Section 218.13--Secretary's Authority
    Paragraph (a) identifies the Secretary's authority.
    Paragraph (b) identifies that projects and activities authorized by 
the Secretary or Under Secretary of Agriculture are not subject to 
these procedures. Nothing in the Consolidated Appropriations Act (CAA), 
Appeal Reform Act (ARA), or HFRA alters the Secretary's long-
established authority to exercise any delegated authority and such 
decisions constitute the final administrative determination of the 
USDA.
Section 218.13--Judicial Proceedings
    Section 218.13 reflects the Department's interpretation and 
implementation of the ARA, CAA, and HFRA, the statutory foundation for 
these regulations. Statutory and judicial exhaustion requirements 
ensure that an agency is able to develop full factual records, to apply 
technical and managerial expertise to identified problems, to exercise 
its judgment and discretion, and to correct its own mistakes. 
Exhaustion requirements are credited with promoting accuracy, 
efficiency, public participation, agency autonomy, and judicial 
economy.
    Generally, statutory exhaustion requirements are jurisdictional and 
cannot be waived by courts. The CAA and HFRA permit plaintiffs to 
undertake the burden of demonstrating that a ``futility or inadequacy'' 
exception should be invoked as to a specific plaintiff or claim. The 
Department understands these statutory provisions are to be read 
together, narrowly construed, and invoked only in rare instances such 
as where information becomes available only after the conclusion of the 
administrative process.
    Congress stated that National Environmental Policy Act (NEPA) 
documents are to be in complete or final form when made available for 
objection. The objection process is, therefore, not a second comment 
period on a draft document, but rather a final opportunity to ensure 
full understanding of public concerns shortly preceding a decision.
    Congress' view on the purpose or intent for the objection process 
likewise narrows the operation of the futility exemption to those 
situations where information, which dramatically changes the picture 
with regard to environmental effects, or the need for the project, 
comes to light after the NEPA document has been completed.
    A contrary reading would be inconsistent with Congress' expectation 
that the exception provisions are not applicable to information which 
has not been brought to the attention of the Agency. The objection 
process protects against the possibility of a ``futile'' objection due 
to delay because final decisions on proposed actions cannot be issued 
prior to conclusion of the objection process and any issue brought to 
the attention of the agency during project or activity development can 
be assessed through the objection process. Similarly, predecisional 
review of each proposed action avoids the criticism sometimes leveled 
against postdecisional appeals that reviewers are unfairly disposed to 
a particular or predetermined outcome. Instances of futility or 
inadequacy should be rare indeed as the administrative review is 
conducted through a process Congress created specifically for 
authorized hazardous fuel reduction projects and then applied to this 
broader class of actions, and which occurs prior to the

[[Page 47342]]

Agency's final decision. Moreover, the participatory requirements for 
these projects are predicated on Congress's determination, expressed 
through the statutory scheme, that predecisional collaboration is vital 
to avoiding potential disputes and that the land managers are in the 
optimal position to identify and correct any errors and to fine-tune 
the design of proposed actions if they are made aware of concerns 
before final decisions are made. Sweeping exceptions to the 
participatory requirements are at odds with Congress' intent.
Section 218.15--Information Collection Requirements
    This section explains that the rule contains information collection 
requirements as defined in 5 CFR part 1320 by specifying the 
information that objectors must supply in an objection. Public comment 
is being sought on this information collection requirement, as 
discussed in the Regulatory Certifications section. See the Addresses 
section for instructions on how to submit comments on the information 
collection requirement.
Section 218.16--Effective Dates
    This section sets out the effective date of this rule and provides 
for a rapid, yet smooth, transition from the use of a postdecisional 
appeal process for most project proposals to this predecisional 
objection process. Transition provisions are necessary to assure that 
interested and affected parties have full opportunity to be notified of 
the applicable administrative review procedures and to gain eligibility 
to file objections under these regulations regardless of what stage of 
planning and decision making the proposal is at when the final rule 
becomes effective.

Subpart B--Provisions Specific to Project-Level Proposals Not 
Authorized Under the Healthy Forests Restoration Act

Section 218.20--Applicability and Scope
    This section explains that the subpart is applicable to proposed 
actions regarding projects and activities implementing land management 
plans and documented with a Record of Decision (ROD) or Decision Notice 
(DN), except those authorized under the Healthy Forests Restoration 
Act. These are the proposals for which Section 428 of the Consolidated 
Appropriations Act of 2012 (hereafter ``Section 428'') directed that 
final regulations be issued that provide for a predecisional objection 
process for proposed projects and activities documented with a ROD or 
DN, in lieu of subsections (c), (d), and (e) of Section 322 of the 
Appeal Reform Act (ARA). The provisions of this subpart implement the 
notice and comment requirements of the ARA and the emergency situation 
requirements of Section 428. These provisions are to be used for 
applicable projects in combination with the general provisions of 
subpart A.
Section 218.21--Emergency Situations
    This section sets out the procedures for emergency situations. 
Section 428 specifies that if the Chief of the Forest Service 
determines an emergency situation exists for which immediate 
implementation of a proposed action is necessary, the proposed action 
shall not be subject to the predecisional objection process, and 
implementation shall begin immediately after the Forest Service gives 
notice of the final decision for the proposed action.
    Paragraph (a) establishes that authority for making an emergency 
situation determination rests with the Chief and Associate Chief.
    Paragraph (b) describes the process of making an emergency 
situation determination. Emergency situation is defined in Sec.  218.2. 
This paragraph also notes that an emergency situation determination is 
not subject to review.
    Paragraph (c) clarifies when implementation of a project or 
activity decision may begin if an emergency situation determination has 
been made. It differentiates between decisions determined to be an 
emergency documented in a DN and in a ROD. This differentiation is 
necessary to clarify compliance with Council on Environmental Quality 
regulations governing final environmental impact statement and ROD 
timeframes.
    Paragraph (d) explains that the decision notification required by 
Forest Service NEPA regulations at part 220 shall include notification 
that the proposed action has been determined to be an emergency 
situation.
Section 218.22--Proposed Projects and Activities Subject to Legal 
Notice and Opportunity To Comment
    Although the Consolidated Appropriations Act of 2012 superseded 
subsections (c), (d), and (e) of the Appeal Reform Act (ARA), the 
Department understands Congress' intent to be that the notice and 
comment provisions of the ARA would continue to operate for the set of 
projects and activities subject to predecisional objection. The ARA 
established an integrated system of notice, comment, and appeal for 
certain Forest Service projects and activities. Congress has reformed 
this system with the Consolidated Appropriations Act of 2012.
    This section describes the proposed actions that are subject to the 
notice and comment requirements established by Section 322(b) of the 
ARA.
    Paragraphs (a) and (b) establish that proposed projects and 
activities for which an environmental assessment (EA) or environmental 
impact statement (EIS) are prepared are subject to the legal notice and 
opportunity to comment requirements of this subpart.
    Paragraph (c) requires that legal notice and opportunity to comment 
will be provided for proposed amendments to a land management plan that 
are included as part of a proposed project or activity for which an EA 
is prepared and that are applicable only to the proposed project or 
activity.
    This section also provides that proposed projects or activities 
resulting from a supplement or revision of an EA or EIS based on 
consideration of new information or changed circumstances (paragraph 
(d)) and proposed research activities to be conducted on National 
Forest System land (paragraph (e)) are subject to legal notice and 
opportunity to comment procedure.
Section 218.23--Proposed Projects and Activities Not Subject to Legal 
Notice and Opportunity To Comment
    Paragraph (a) is reserved pending consideration of further 
developments concerning whether proposed actions that are categorically 
excluded from documentation in an EA or EIS should be subject to the 
notification and public involvement requirements.
    Land management plan proposals that are made separately from any 
proposed projects are not subject to the legal notice and opportunity 
to comment provisions of this subpart (paragraph (b)), nor are proposed 
projects and activities that are not subject to provisions of the NEPA 
and its implementing regulations.
    As with prior project appeal procedures, paragraph (d) excludes 
from legal notice and opportunity to comment determinations by the 
responsible official that a correction, supplement, or revision of an 
EA or EIS is not required and paragraph (e) excludes rules promulgated 
in accordance with the Administrative Procedure Act and policies and 
procedures issued in the Forest Service directives system.
    Paragraph (f) excludes from legal notice and opportunity to comment 
hazardous fuel reduction projects authorized under the HFRA. Public

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notice and comment opportunities for these projects are guided by the 
provisions of the HFRA and of the NEPA and its implementing 
regulations.
Section 218.24--Notification of Opportunity To Comment on Proposed 
Projects and Activities
    This section establishes the requirements for providing legal and 
other notice of the opportunity to comment on proposed projects and 
activities implementing land management plans.
    Paragraph (a) describes general responsibilities of the responsible 
official regarding publication of a legal notice of opportunity to 
comment.
    Paragraph (b) provides the content requirements of a legal notice 
of opportunity to comment.
    Paragraph (c) provides for where legal notices of opportunity to 
comment must be published.
Section 218.25--Comments on Proposed Projects and Activities
    Paragraph (a) establishes specific provisions regarding the 
opportunity to comment, including the time periods for submission, 
requirements associated with the comments, and the means by which the 
Agency will establish timeliness of comments submitted.
    Paragraph (b) provides requirements for the acceptance and use of 
submitted comments.
Section 218.26--Objection Time Periods
    Paragraph (a) specifies that the objection-filing period is 45 days 
following publication of the legal notice of the EA or final EIS, and 
draft decision, in the newspaper of record or the publication date of 
the notice in the Federal Register when the Chief is the responsible 
official. This is the same filing period length that has been provided 
for postdecisional appeals of project decisions since 1993.
    Paragraph (b) states that a written response to the objection shall 
be issued within 45 days following the end of the objection-filing 
period. The reviewing officer has the discretion to extend the time for 
up to 10 days when he or she determines that additional time is 
necessary to provide adequate response to objections or to participate 
in resolution discussions with the objector(s). This provision for 
optional extension of the review and response time increases the 
potential for constructive resolution of objection concerns when 
fruitful discussions are occurring.

Subpart C--Provisions Specific to Proposed Projects Authorized Under 
the Healthy Forests Restoration Act

Section 218.30--Applicability and Scope
    This section explains that the subpart is applicable to proposed 
hazardous fuel reduction projects authorized under the Healthy Forests 
Restoration Act (HFRA). The provisions of this subpart are to be used 
for applicable projects in combination with the general provisions of 
subpart A.
Section 218.31--Authorized Hazardous Fuel Reduction Projects Subject to 
Objection
    This section describes projects subject to the objection process 
provisions of subpart C. Hazardous fuel reduction projects that are 
subject to the provision of subpart C, in combination with the 
provision of subpart A, are not subject to the requirements of subpart 
B.
Section 218.32--Objection Time Periods
    Paragraph (a) specifies that the objection-filing period is 30 days 
following publication of the legal notice of the EA or final EIS in the 
newspaper of record or the publication date of the notice in the 
Federal Register when the Chief is the responsible official.
    Paragraph (b) states that a written response to the objection shall 
be issued within 30 days following the end of the objection-filing 
period.
    These are the same filing and response timeframes provided for 
proposed hazardous fuel reduction projects authorized under the HFRA 
since 2004. The shorter timeframes for this class of projects, as 
compared to those for proposed actions not authorized under the HFRA 
(subpart B of the proposed rule), are appropriate because of the 
interest in expediting the reduction of hazardous fuels as a means to 
reduce the threat of destructive wildfires.

Regulatory Certifications

Regulatory Impact

    This proposed rule has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review. It has been 
determined that this is not a significant rule. This proposed rule will 
not have an annual effect of $100 million or more on the economy nor 
adversely affect productivity, competition, jobs, the environment, 
public health or safety, nor State or local governments. This proposed 
rule will not interfere with an action taken or planned by another 
agency nor raise new legal or policy issues. Finally, this action will 
not alter the budgetary impact of entitlements, grants, user fees, or 
loan programs, or the rights and obligations of recipients of such 
programs.
    Moreover, this proposed rule has been considered in light of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been 
determined that this action will not have a significant economic impact 
on a substantial number of small entities as defined by that act. 
Therefore, a regulatory flexibility analysis is not required for this 
proposed rule.

Environmental Impacts

    This proposed rule establishes a predecisional administrative 
review (objection) process for proposed actions regarding projects and 
activities implementing land management plans, including authorized 
hazardous fuel reduction projects on National Forest System land. 
Agency NEPA regulations at 36 CFR 220.6(d)(2) exclude from 
documentation in an environmental assessment or impact statement 
``rules, regulations, or policies to establish Service-wide 
administrative procedures, program processes, or instruction.'' This 
proposed rule clearly falls within this category of actions and no 
extraordinary circumstances exist which would require preparation of an 
environmental assessment or an environmental impact statement. Previous 
Forest Service administrative appeal rulemakings have applied this 
categorical exclusion and been confirmed by the courts.

Energy Effects

    This proposed rule has been reviewed under Executive Order 13211 of 
May 18, 2001, ``Actions Concerning Regulations That Significantly 
Affect Energy Supply, Distribution, or Use.'' It has been determined 
that this proposed rule does not constitute a significant energy action 
as defined in the Executive order.

Controlling Paperwork Burdens on the Public

    This proposed rule represents an extension with revision of a 
currently approved information collection requirement as defined in 5 
CFR Part 1320, Controlling Paperwork Burdens on the Public. The 
information to be collected from those who choose to participate in the 
predecisional administrative review process under the Consolidated 
Appropriations Act of 2012 and the Healthy Forests Restoration Act is 
the minimum needed for the reviewing officer to make an informed 
decision on an objection.

[[Page 47344]]

Description of Information Collection
    Title: Project-Level Predecisional Administrative Review Process.
    OMB Number: 0596-0172.
    Expiration Date of Approval: February 28, 2014.
    Type of Request: Extension with Revision.
    Abstract: The information collected is needed for a citizen or 
organization to explain the nature of the objection being made to a 
proposed project or activity undertaken under the authority of the 
Consolidated Appropriations Act of 2012 or the Healthy Forests 
Restoration Act, and the reason(s) why the individual or organization 
objects. Specifically, an objector must provide:
    1. A name, mailing address, and if possible, telephone number;
    2. Signature or other verification of authorship upon request;
    3. The name of the proposed project or activity, the name and title 
of the responsible official, the National Forest(s) and/or Ranger 
District(s) on which the proposed project or activity will be 
implemented; and
    4. Any specific changes that the objector seeks and the rationale 
for those changes.
    Estimate of Burden: The public reporting burden to provide 
information when filing an objection to a proposed project or activity 
is estimated to average 8 hours per response.
    Respondents: Individuals, businesses, not-for-profit institutions, 
State, local or Tribal Government.
    Estimated Number of Respondents: 375.
    Estimated Number of Responses per Respondent: 1 response per year.
    Estimated Total Annual Burden on Respondents: 3,000 hours.
    Comments are Invited on: (a) Whether the collection of information 
is necessary for the proper performance of the functions of the Agency, 
including whether the information will have practical utility; (b) the 
accuracy of this Agency's estimate of the burden of the collection of 
information, including the validity of the methodology and assumptions 
used; (c) ways to enhance the quality, utility, and clarity of the 
information to be collected; and (d) ways to minimize the burden of the 
collection of information on respondents, including the use of 
automated collection techniques or other forms of information 
technology.
    Use of Comments: All comments received in response to this 
information collection will be summarized and included in the request 
for final OMB approval. All comments, including names and addresses 
when provided will become a matter of public record.

Federalism

    The Agency has considered this proposed rule under the requirements 
of Executive Order 13132, Federalism, and Executive Order 12875, 
Government Partnerships. The Agency has made a preliminary assessment 
that the proposed rule conforms with the federalism principles set out 
in these Executive orders; would not impose any compliance costs on the 
States; and would 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. Based on comments received on this proposed rule, the 
Agency will consider if any additional consultation will be needed with 
State and local governments prior to adopting a final rule.

Consultation and Coordination With Indian Tribal Governments

    On March 21, 2012, the Regional Foresters were instructed by the 
Deputy Chief for the National Forest System to send letters inviting 
more than 600 federally recognized Tribes and Alaska Native 
Corporations to begin consultation on the proposed rule for a project-
level predecisional review process. The Forest Service will continue to 
conduct government-to-government consultation on the project-level 
predecisional review process rule until the date 30 days after 
publication of the proposed rule in the Federal Register. The 
Department considers tribal consultation as an ongoing, iterative 
process that encompasses development of the proposed rule through the 
issuance of the final rule.

No Takings Implications

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630. It has been 
determined that the proposed rule does not pose the risk of a taking of 
private property.

Civil Justice Reform

    This proposed rule has been reviewed under Executive Order 12988 on 
civil justice reform. After adoption of this proposed rule, (1) all 
State and local laws and regulations that conflict with this rule or 
that impede its full implementation will be preempted; (2) no 
retroactive effect will be given to this proposed rule; and (3) it will 
not require administrative proceedings before parties may file suit in 
court challenging its provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the Agency has assessed the effects of this proposed rule on 
State, local, and tribal governments and the private sector. This 
proposed rule does not compel the expenditure of $100 million or more 
by any State, local, or tribal governments or anyone in the private 
sector. Therefore, a statement under Section 202 of the act is not 
required.

List of Subjects in 36 CFR Part 218

    Administrative practice and procedure, National Forests.

    Therefore, for the reasons set forth in the preamble, part 218 of 
Title 36 of the Code of Federal Regulations is proposed to be revised 
as follows:

PART 218--PROJECT-LEVEL PREDECISIONAL ADMINISTRATIVE REVIEW PROCESS

Subpart A--General Provisions

Sec.
218.1 Purpose and scope.
218.2 Definitions.
218.3 Reviewing officer.
218.4 Proposed projects and activities not subject to objection.
218.5 Who may file an objection.
218.6 Computation of time periods.
218.7 Giving notice of objection process for proposed projects and 
activities subject to objection.
218.8 Filing an objection.
218.9 Evidence of timely filing.
218.10 Objections set aside from review.
218.11 Resolution of objections.
218.12 Timing of project decision.
218.13 Secretary's authority.
218.14 Judicial proceedings.
218.15 Information collection requirements.
218.16 Effective dates.
Subpart B--Provisions Specific to Project-Level Proposals Not 
Authorized Under the Healthy Forests Restoration Act
218.20 Applicability and scope.
218.21 Emergency situations.
218.22 Proposed projects and activities subject to legal notice and 
opportunity to comment.
218.23 Proposed projects and activities not subject to legal notice 
and opportunity to comment.
218.24 Notification of opportunity to comment on proposed projects 
and activities.
218.25 Comments on proposed projects and activities.
218.26 Objection time periods.
Subpart C--Provisions Specific to Proposed Projects Authorized Under 
the Healthy Forests Restoration Act
218.30 Applicability and scope.
218.31 Authorized hazardous fuel reduction projects subject to 
objection.

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218.32 Objection time periods.


    Authority:  Pub. L. 108-148, 117 Stat 1887 (Healthy Forests 
Restoration Act of 2003); Sec. 428, Pub. L. 112-74 (Consolidated 
Appropriations Act, 2012); 125 Stat 1046 (16 U.S.C. 6515 note).

Subpart A--General Provisions


Sec.  218.1  Purpose and scope.

    This subpart establishes a predecisional administrative review 
(hereinafter referred to as ``objection'') process for proposed actions 
of the Forest Service concerning projects and activities implementing 
land and resource management plans and documented with a Record of 
Decision or Decision Notice, including proposed authorized hazardous 
fuel reduction projects as defined in the Healthy Forests Restoration 
Act of 2003 (HFRA). The objection process is the sole means by which 
administrative review of qualifying project proposals on National 
Forest System land may be sought.
    (a) Subpart A provides the general provisions of the objection 
process, including who may file objections to proposed projects and 
activities, the responsibilities of the participants in an objection, 
and the procedures that apply for review of the objection.
    (b) Subpart B includes provisions that are specific to proposed 
projects and activities implementing land and resource management plans 
and documented with a Record of Decision or Decision Notice, except 
those authorized under the HFRA.
    (c) Subpart C includes provisions that are specific to proposed 
hazardous fuel reduction projects authorized under the HFRA.


Sec.  218.2  Definitions.

    Address. An individual's or organization's current physical mailing 
address. An email address is not sufficient.
    Authorized hazardous fuel reduction project--A hazardous fuel 
reduction project authorized by the Healthy Forests Restoration Act of 
2003 (HFRA).
    Comments--Specific written comments submitted to the responsible 
official or designee during a designated opportunity for public 
participation provided for a proposed project that are in regard to 
that project.
    Decision notice (DN)--A concise written record of a responsible 
official's decision based on an environmental assessment and a finding 
of no significant impact (FONSI) (40 CFR 1508.13; 36 CFR 220.7). The 
draft decision document made available pursuant to Sec.  218.7(c)(1) 
will include a draft FONSI unless an environmental impact statement is 
being prepared.
    Emergency situation--A situation on National Forest System (NFS) 
lands for which immediate implementation of a decision is necessary to 
achieve one or more of the following: relief from hazards threatening 
human health and safety; mitigation of threats to natural resources on 
those NFS or adjacent lands; avoiding a loss of commodity value 
sufficient to jeopardize the agency's ability to accomplish project 
objectives directly related to resource protection or restoration.
    Entity--For purposes of who may file an objection (Sec.  218.5), an 
entity includes non-governmental organizations, businesses, 
partnerships, state and local governments, Alaska Native Corporations, 
and Indian Tribes.
    Environmental assessment (EA)--A public document that provides 
sufficient evidence and analysis for determining whether to prepare an 
environmental impact statement (EIS) or a finding of no significant 
impact (FONSI), aids an agency's compliance with the National 
Environmental Policy Act (NEPA) when no EIS is necessary, and 
facilitates preparation of a statement when one is necessary (40 CFR 
1508.9; 36 CFR 220.7).
    Environmental impact statement (EIS)--A detailed written statement 
as required by Section 102(2)(C) of the National Environmental Policy 
Act (NEPA) of 1969 (40 CFR 1508.11; 36 CFR 220.5).
    Forest Service line officer--A Forest Service official who serves 
in a direct line of command from the Chief and who has the delegated 
authority to make and execute decisions approving projects subject to 
this part.
    Lead objector--For an objection submitted with multiple individuals 
and/or entities listed, the individual or entity identified to 
represent all other objectors for the purposes of communication, 
written or otherwise, regarding the objection.
    Name--The first and last name of an individual or the name of an 
entity. An electronic username is insufficient for identification of an 
individual or entity.
    National Forest System land--All lands, waters, or interests 
therein administered by the Forest Service (36 CFR 251.51).
    Newspaper(s) of record--Those principal newspapers of general 
circulation annually identified in a list and published in the Federal 
Register by each regional forester to be used for publishing notices of 
projects and activities implementing land management plans.
    Objection--The written document filed with a reviewing officer by 
an individual or entity seeking predecisional administrative review of 
a proposed project or activity implementing a land management plan, 
including proposed HFRA-authorized hazardous fuel reduction projects, 
and documented with an environmental assessment or environmental impact 
statement.
    Objection period--The period following publication of the legal 
notice in the newspaper of record of an environmental assessment (30 
calendar days) or final environmental impact statement (45 calendar 
days) for a proposed project or activity during which an objection may 
be filed with the reviewing officer. When the Chief is the responsible 
official the objection period begins following publication of a notice 
in the Federal Register.
    Objection process--The procedures established in this subpart for 
predecisional administrative review of proposed projects or activities 
implementing land management plans, including proposed HFRA-authorized 
hazardous fuel reduction projects.
    Objector--An individual or entity filing an objection who submitted 
comments specific to the proposed project or activity during scoping or 
other opportunity for public comment. The use of the term ``objector'' 
applies to all persons or entities who meet eligibility requirements 
associated with the filed objection (Sec.  218.5).
    Record of decision (ROD)--A document signed by a responsible 
official recording a decision that was preceded by preparation of an 
environmental impact statement (EIS) (40 CFR 1505.2; 36 CFR 220.5).
    Responsible official--The Forest Service employee who has the 
delegated authority to make and implement a decision approving proposed 
projects or activities subject to this part.


Sec.  218.3  Reviewing officer.

    (a) The reviewing officer is the U. S. Department of Agriculture 
(USDA) or Forest Service official having the delegated authority and 
responsibility to review an objection filed under this part. The 
reviewing officer is a Forest Service line officer at the next higher 
administrative level above the responsible official, or the respective 
Associate Deputy Chief, Deputy Regional Forester, or Deputy Forest 
Supervisor with the delegation of authority relevant to the provisions 
of this part.
    (b) The reviewing officer determines procedures to be used for 
processing objections when the procedures are not

[[Page 47346]]

specifically described in this part, including such procedures as 
needed to be compatible to the extent practicable, with the 
administrative review processes of other Federal agencies, for projects 
proposed jointly with other agencies. Such determinations are not 
subject to further administrative review.


Sec.  218.4  Proposed projects and activities not subject to objection.

    Proposed projects and activities are not subject to objection when 
no specific and timely written comments regarding the proposed project 
or activity (see Sec.  218.2) are received during a designated 
opportunity for public comment (see Sec.  218.5(a)). The responsible 
official must issue an explanation with the Record of Decision or 
Decision Notice that the project or activity was not subject to 
objection.


Sec.  218.5  Who may file an objection.

    (a) Individuals and entities as defined in Sec.  218.2 who have 
submitted specific and timely written comments as defined in Sec.  
218.2 regarding the proposed project or activity during a designated 
opportunity for public comment provided during preparation of an EA or 
EIS for the proposed project or activity may file an objection. For 
proposed projects or activities described in a draft EIS, such 
opportunity for public comment will be fulfilled during scoping, by the 
comment period on the draft EIS in accordance with procedures in 40 CFR 
1506.10, and any other periods public comment is specifically 
requested. For proposed projects or activities described in an EA, such 
opportunity for public comment will be fulfilled during scoping or any 
other periods public comment is specifically requested.
    (b) Comments received from an authorized representative(s) of an 
entity are considered those of the entity only. Individual members of 
that entity do not meet objection eligibility requirements solely on 
the basis of membership in an entity. A member or an individual must 
submit written comments independently in order to be eligible to file 
an objection in an individual capacity.
    (c) When an objection lists multiple individuals or entities, each 
individual or entity must meet the requirements of paragraph (a) of 
this section. If the objection does not identify a lead objector as 
required at Sec.  218.8(d)(3), the reviewing officer will delegate the 
first eligible objector on the list as the lead objector. Individuals 
or entities listed on an objection that do not meet eligibility 
requirements must not be considered objectors. Objections from 
individuals or entities that do not meet the requirements of paragraph 
(a) must not be accepted and must be documented in the objection 
record.
    (d) Federal agencies may not file objections.
    (e) Federal employees who otherwise meet the requirements of this 
subpart for filing objections in a non-official capacity must comply 
with Federal conflict of interest statutes at 18 U.S.C. 202-209 and 
with employee ethics requirements at 5 CFR part 2635. Specifically, 
employees must not be on official duty nor use Government property or 
equipment in the preparation or filing of an objection. Further, 
employees must not incorporate information unavailable to the public, 
such as Federal agency documents that are exempt from disclosure under 
the Freedom of Information Act (5 U.S.C. 552 (b)).


Sec.  218.6  Computation of time periods.

    (a) Computation. All time periods are computed using calendar days, 
including Saturdays, Sundays, and Federal holidays. However, when the 
time period expires on a Saturday, Sunday, or Federal holiday, the time 
is extended to the end of the next Federal working day as stated in the 
legal notice (11:59 p.m. in the time zone of the receiving office for 
objections filed by electronic means such as email or facsimile).
    (b) Objection-filing period. The day after publication of the legal 
notice for the EA or final EIS in the newspaper of record or Federal 
Register (see Sec.  218.7(c)) is the first day of the objection-filing 
period.
    (c) Publication date. The publication date of the legal notice of 
the EA or final EIS in the newspaper of record or, when the Chief is 
the responsible official, the Federal Register, is the exclusive means 
for calculating the time to file an objection. Objectors may not rely 
on dates or timeframe information provided by any other source.
    (d) Extensions. Time extensions are not permitted except as 
provided at paragraph (a) of this section, and Sec.  218.26(b).


Sec.  218.7  Giving notice of objection process for proposed projects 
and activities subject to objection.

    (a) In addition to the notification required in paragraph (c) of 
this section, the responsible official must disclose during scoping and 
in the EA or EIS that the proposed project or activity is:
    (1) A hazardous fuel reduction project as defined by the HFRA, 
section 101(2), that is subject to subparts A and C of this part, or
    (2) A project or activity implementing a land management plan and 
not authorized under the HFRA, that is subject to subparts A and B of 
this part.
    (b) The responsible official must promptly make available the final 
EIS or the EA, and a draft Record of Decision (ROD) or Decision Notice 
(DN), to those who have requested the documents or are eligible to file 
an objection in accordance with Sec.  218.5(a).
    (c) Upon completion and notification of the availability of the 
final EIS or EA, and draft ROD or DN, legal notice of the opportunity 
to object to a proposed project or activity must be published in the 
applicable newspaper of record identified as defined in Sec.  218.2 for 
each National Forest System unit. When the Chief is the responsible 
official, notice must be published in the Federal Register. The legal 
notice or Federal Register notice must
    (1) Include the name of the proposed project or activity, a concise 
description of the draft decision and any proposed land management plan 
amendments, name and title of the responsible official, name of the 
forest and/or district on which the proposed project or activity will 
occur, instructions for obtaining a copy of the final EIS or EA and 
draft ROD or DN as defined in Sec.  218.2, and instructions on how to 
obtain additional information on the proposed project or activity.
    (2) State that the proposed project or activity is subject to the 
objection process pursuant to 36 CFR part 218 and include the 
following:
    (i) Name and address of the reviewing officer with whom an 
objection is to be filed. The notice must specify a street, postal, 
fax, and email address, the acceptable format(s) for objections filed 
electronically, and the reviewing officer's office business hours for 
those filing hand-delivered objections.
    (ii) A statement that objections will be accepted only from those 
who have previously submitted specific written comments regarding the 
proposed project during scoping or other opportunity for public comment 
in accordance with Sec.  218.5(a). The statement must also specify that 
issues raised in objections must be based on previously submitted 
specific written comments regarding the proposed project unless the 
issue is based on new information arising after the opportunities for 
comment.
    (iii) A statement that the publication date of the legal notice in 
the newspaper of record or Federal Register notice is the exclusive 
means for calculating the time to file an objection (see Sec. Sec.  
218.26(a) and 218.32(a)), and that those wishing to object should not 
rely

[[Page 47347]]

upon dates or timeframe information provided by any other source. A 
specific date must not be included in the notice.
    (iv) A statement of whether the proposal is a hazardous fuel 
reduction project authorized under the HFRA and subject to the 
predecisional objection procedures specific to such projects in subpart 
C of this part or is a project implementing a land management plan, not 
authorized under the HFRA, and therefore subject to the objection 
procedures specific to these projects in subpart B of this part.
    (v) A statement that an objection, including attachments, must be 
filed (regular mail, fax, email, hand-delivery, express delivery, or 
messenger service) with the appropriate reviewing officer (see Sec.  
218.8) within 30 days of the date of publication of the legal notice 
for the objection process if the proposal is an authorized hazardous 
fuel reduction project, or within 45 days if the proposal is otherwise 
a project or activity implementing a land management plan. It should 
also be stated that incorporation of documents by reference is 
permitted only as provided for at Sec.  218.8(b).
    (vi) A statement describing the minimum content requirements of an 
objection (see Sec.  218.8(d)).
    (d) Through notice published annually in the Federal Register, each 
regional forester must advise the public of the newspaper(s) of record 
utilized for publishing legal notice required by this part.


Sec.  218.8  Filing an objection.

    (a) Objections must be filed with the reviewing officer in writing. 
All objections are available for public inspection during and after the 
objection process.
    (b) Incorporation of documents by reference is not allowed, except 
for the following list of items which may be provided by including 
date, page, and section of the cited document. All other documents must 
be included with the objection.
    (1) All or any part of a Federal law or regulation.
    (2) Forest Service directives and land management plans.
    (3) Documents referenced by the Forest Service in the proposed 
project EA or EIS that is subject to objection.
    (4) Comments previously provided to the Forest Service by the 
objector during proposed project or activity comment periods.
    (c) Issues raised in objections must be based on previously 
submitted specific written comments regarding the proposed project or 
activity and attributed to the objector, unless the issue is based on 
new information that arose after the opportunities for comment. The 
burden is on the objector to demonstrate compliance with this 
requirement for objection issues (see Sec.  218.8(d)(6)).
    (d) At a minimum, an objection must include the following:
    (1) Objector's name and address as defined in Sec.  218.2, with a 
telephone number, if available;
    (2) Signature or other verification of authorship upon request (a 
scanned signature for electronic mail may be filed with the objection);
    (3) When multiple names are listed on an objection, identification 
of the lead objector as defined in Sec.  218.2. Verification of the 
identity of the lead objector must be provided upon request;
    (4) The name of the proposed project, the name and title of the 
responsible official, and the name(s) of the national forest(s) and/or 
ranger district(s) on which the proposed project will be implemented;
    (5) Sufficient narrative description of those aspects of the 
proposed project addressed by the objection, specific issues related to 
the proposed project; if applicable, how the objector believes the 
environmental analysis or draft decision specifically violates law, 
regulation, or policy; and suggested remedies that would resolve the 
objection; and
    (6) A statement that demonstrates the link between prior written 
comments on the particular proposed project or activity and the content 
of the objection, unless the objection concerns an issue that arose 
after the designated opportunity(ies) for comment (see Sec.  218.8(c)).


Sec.  218.9  Evidence of timely filing.

    It is the objector's responsibility to ensure timely filing of an 
objection. Timeliness must be determined by the following indicators:
    (a) The date of the U.S. Postal Service postmark for an objection 
received before the close of the fifth business day after the objection 
filing date;
    (b) The electronically generated posted date and time for email and 
facsimiles;
    (c) The shipping date for delivery by private carrier for an 
objection received before the close of the fifth business day after the 
objection filing date; or
    (d) The official agency date stamp showing receipt of hand 
delivery.


Sec.  218.10  Objections set aside from review.

    (a) The reviewing officer must set aside and not review an 
objection when one or more of the following applies:
    (1) Objections are not filed in a timely manner (see Sec. Sec.  
218.7(c)(2)(v), 218.9).
    (2) The proposed project is not subject to the objection procedures 
in Sec. Sec.  218.1, 218.4, 218.20, and 218.31 of this part.
    (3) The individual or entity did not submit timely and specific 
written comments regarding the proposed project or activity during 
scoping or another designated opportunity for public comment (see Sec.  
218.5(a)).
    (4) None of the issues included in the objection are based on 
previously submitted written comments unless one or more of those 
issues arose after the opportunities for comment.
    (5) The objection does not provide sufficient information as 
required by Sec.  218.8(d)(5) and (6) for the reviewing officer to 
review.
    (6) The objector withdraws the objection.
    (7) An objector's identity is not provided or cannot be determined 
from the signature (written or electronically scanned) and a reasonable 
means of contact is not provided (see Sec.  218.8(d)(1) and (2)).
    (8) The objection is illegible for any reason, including 
submissions in an electronic format different from that specified in 
the legal notice.
    (b) The reviewing officer must give written notice to the objector 
and the responsible official when an objection is set aside from review 
and must state the reasons for not reviewing the objection. If the 
objection is set aside from review for reasons of illegibility or lack 
of a means of contact, the reasons must be documented and a copy placed 
in the objection record.


Sec.  218.11  Resolution of objections.

    (a) Meetings. Prior to the issuance of the reviewing officer's 
written response, either the reviewing officer or the objector may 
request to meet to discuss issues raised in the objection and potential 
resolution. The reviewing officer has the discretion to determine 
whether or not adequate time remains in the review period to make a 
meeting with the objector practical. The responsible official should be 
a participant along with the reviewing officer in objection resolution 
meetings. All meetings are open to the public.
    (b) Reviewing officer's response to objections. (1) A written 
response must set forth the reasons for the response, but need not be a 
point-by-point response and may contain instructions to the responsible 
official, if necessary. In cases involving more than one objection to a 
proposed project or activity, the reviewing officer may consolidate 
objections and issue one or more responses.
    (2) No further review from any other Forest Service or USDA 
official of the

[[Page 47348]]

reviewing officer's written response to an objection is available.


Sec.  218.12  Timing of project decision.

    (a) The responsible official may not sign a ROD or DN concerning a 
proposed project or activity subject to the provisions of this part 
until the reviewing officer has responded to all pending objections.
    (b) The ROD or DN signed by the responsible official must be 
consistent with the reviewing officer's response to objections.
    (c) When no objection is filed within the allotted filing period 
(see Sec. Sec.  218.26 and 218.32):
    (1) The reviewing officer must notify the responsible official.
    (2) Approval of the proposed project or activity documented in a 
ROD in accordance with 40 CFR 1506.10, or in a DN may occur on, but not 
before, the fifth business day following the end of the objection-
filing period.


Sec.  218.13  Secretary's authority.

    (a) Nothing in this section shall restrict the Secretary of 
Agriculture from exercising any statutory authority regarding the 
protection, management, or administration of National Forest System 
land.
    (b) Decisions concerning projects and activities issued by the 
Secretary of Agriculture or the Under Secretary, Natural Resources and 
Environment, are not subject to the procedures set forth in this part. 
Approval of projects and activities by the Secretary or Under Secretary 
constitutes the final administrative determination of the U.S. 
Department of Agriculture.


Sec.  218.14  Judicial proceedings.

    The objection process set forth in this subpart fully implements 
Congress' design for a predecisional administrative review process. 
These procedures present a full and fair opportunity for concerns to be 
raised and considered on a project-by-project basis. Individuals and 
groups must structure their participation so as to alert the local 
agency officials making particular land management decisions of their 
positions and contentions. Further, any filing for Federal judicial 
review of a decisions covered by these regulations is premature and 
inappropriate unless the plaintiff has exhausted the administrative 
review process set out in this part.


Sec.  218.15  Information collection requirements.

    The rules of this part specify the information that objectors must 
provide in an objection to a proposed project (see Sec.  218.8). As 
such, these rules contain information collection requirements as 
defined in 5 CFR part 1320. These information requirements are assigned 
OMB Control Number 0596-0172.


Sec.  218.16  Effective dates.

    (a) Effective dates for HFRA-authorized projects. (1) Provisions of 
this part that are applicable to hazardous fuel reduction projects 
authorized under the HFRA are in effect as of [DATE OF PUBLICATION OF 
THE FINAL RULE IN THE Federal Register] for projects where scoping 
begins on or after this date.
    (2) Hazardous fuel reduction project proposals under the HFRA for 
which public scoping began prior to [DATE OF PUBLICATION OF THE FINAL 
RULE IN THE Federal Register] may use the predecisional objection 
procedures posted at http://www.fs.fed.us/objections.
    (3) Hazardous fuel reduction project proposals that are re-scoped 
with the public or re-issued for notice and comment after [DATE OF 
PUBLICATION OF THE FINAL RULE IN THE Federal Register] are subject to 
this part.
    (b) Effective dates for non-HFRA-authorized projects. (1) Project 
proposals with public scoping completed, but that have not had legal 
notice published. The applicable provisions of this part are in effect 
as of [DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal Register] 
where public scoping was previously initiated for project proposals, 
but legal notice of the opportunity to comment has not yet been 
published; unless scoping or other public notification of the project 
(e.g. Schedule of Proposed Actions) has clearly indicated the project 
to be under the former 36 CFR part 215 appeal process.
    (2) Project proposals which have legal notice published, but a 
Decision Notice or Record of Decision has not been signed. If a 
Decision Notice or Record of Decision is signed within 6 months of 
[DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal Register], it 
will be subject to the 36 CFR part 215 appeal process. If the Decision 
Notice or Record of Decision is to be signed more than 6 months beyond 
[DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal Register], the 
project proposal will be subject to the requirements of this part. In 
this case, the responsible official will notify all interested and 
affected parties who participated during scoping or provided specific 
written comment regarding the proposed project or activity during the 
comment period initiated with a legal notice that the project proposal 
will be subject to the predecisional objection regulations at 36 CFR 
part 218. All interested and affected parties who provided written 
comment as defined in Sec.  218.2 during scoping or the comment period 
will be eligible to participate in the objection process.
    (3) Project proposals are subject to the requirements of this part 
when initial public scoping, re-scoping with the public, or re-issuance 
of notice and comment begins on or after [DATE OF PUBLICATION OF THE 
FINAL RULE IN THE Federal Register].

Subpart B--Provisions Specific to Project-Level Proposals Not 
Authorized Under Healthy Forests Restoration Act


Sec.  218.20  Applicability and scope.

    This subpart includes provisions that are specific to proposed 
projects and activities implementing land and resource management plans 
and documented with a Record of Decision or Decision Notice, except 
those authorized under the Healthy Forests Restoration Act (HFRA). The 
sections of this subpart must be considered in combination with the 
general provisions of subpart A for the full complement of regulatory 
direction pertaining to predecisional administrative review of the 
applicable projects and activities.


Sec.  218.21  Emergency situations.

    (a) Authority. The Chief and the Associate Chief of the Forest 
Service are authorized to make the determination that an emergency 
situation as defined in Sec.  218.2 exists.
    (b) Determination. The determination that an emergency situation 
exists shall be based on an examination of the relevant information. 
During the consideration by the Chief or Associate Chief, additional 
information may be requested from the responsible official. The 
determination that an emergency situation does or does not exist is not 
subject to administrative review under this part.
    (c) Implementation. When it is determined that an emergency 
situation exists with respect to all or part of the decision, 
implementation may proceed as follows:
    (1) Immediately after notification (see 36 CFR 220.7(d)) of a 
decision documented in a decision notice (DN).
    (2) Immediately when the decision is documented in a record of 
decision (ROD), after complying with the timeframes and publication 
requirements described in 40 CFR 1506.10(b)(2).
    (d) Notification. The responsible official shall identify any 
emergency

[[Page 47349]]

situation determination made for a project or activity in the 
notification of the decision (see 36 CFR 220.5(g) and 220.7(d)).


Sec.  218.22  Proposed projects and activities subject to legal notice 
and opportunity to comment.

    The legal notice and opportunity to comment procedures of this 
subpart apply only to:
    (a) Proposed projects and activities implementing land management 
plans for which an environmental assessment (EA) is prepared;
    (b) Proposed projects and activities implementing land management 
plans and described in a draft or supplemental environmental impact 
statement (EIS), for which notice and comment procedures are governed 
by 40 CFR parts 1500 through 1508 also;
    (c) Proposed amendments to a land management plan that are included 
as part of a proposed project or activity for which an EA or EIS is 
prepared and which are applicable only to a proposed project or 
activity covered in paragraph (a) of this section;
    (d) A proposed project or activity decision resulting from a 
supplement or revision of an EA or EIS based on consideration of new 
information or changed circumstances; and
    (e) Proposed research activities to be conducted on National Forest 
System land.


Sec.  218.23  Proposed projects and activities not subject to legal 
notice and opportunity to comment.

    The legal notice and opportunity to comment procedures of this 
subpart do not apply to:
    (a) [Reserved];
    (b) Proposed land management plans, plan revisions, and plan 
amendments that are made separately from any proposed projects;
    (c) Proposed projects and activities not subject to the provisions 
of the National Environmental Policy Act and the implementing 
regulations at 40 CFR parts 1500 through 1508 and 36 CFR part 220;
    (d) Determinations by the responsible official, after consideration 
of new information or changed circumstances, that a correction, 
supplement, or revision of the EA or EIS is not required; and
    (e) Rules promulgated in accordance with the Administrative 
Procedure Act (5 U.S.C. 551 et seq.) or policies and procedures issued 
in the Forest Service Manual and Handbooks (36 CFR part 216).
    (f) Proposed hazardous fuel reduction projects authorized under the 
Healthy Forests Restoration Act.


Sec.  218.24  Notification of opportunity to comment on proposed 
projects and activities.

    (a) Responsible official. The responsible official shall:
    (1) Provide legal notice of the opportunity to comment on a 
proposed project or activity implementing the land management plan.
    (2) Determine the most effective timing and then publish the legal 
notice of the opportunity to comment on a proposed project or activity 
as provided for in paragraph (c)(2) of this section.
    (3) Promptly provide notice about the proposed project or activity 
to any individual or organization who has requested it and to those who 
have participated in planning for that project.
    (4) Accept all written comments on the proposed project or activity 
as provided for in Sec.  218.25(a)(4).
    (5) Identify all specific written comments regarding the proposed 
project.
    (b) Content of legal notice. All legal notices shall include the 
following:
    (1) The title and brief description of the proposed project or 
activity.
    (2) A general description of the proposed project or activity's 
location with sufficient information to allow the interested public to 
identify the location.
    (3) When applicable, a statement that the responsible official is 
requesting an emergency situation determination or it has been 
determined that an emergency situation exists for the proposed project 
or activity as provided for in Sec.  218.21.
    (4) For a proposed project or activity to be analyzed and 
documented in an environmental assessment (EA), a statement that the 
opportunity to comment ends 30 days following the date of publication 
of the legal notice in the newspaper of record (see Sec.  
218.25(a)(2)); legal notices shall not contain the specific date since 
newspaper publication dates may vary.
    (5) For a proposed project or activity that is analyzed and 
documented in a draft environmental impact statement (EIS), a statement 
that the opportunity to comment ends 45 days following the date of 
publication of the notice of availability (NOA) in the Federal Register 
(see Sec.  218.25(a)(2)). The legal notice must be published after the 
NOA and contain the NOA publication date.
    (6) A statement that only those who submit timely and specific 
written comments regarding the proposed project or activity during a 
designated opportunity for public comment will be accepted as 
objectors.
    (7) The responsible official's name, title, telephone number, and 
addresses (street, postal, facsimile, and email) to whom comments are 
to be submitted and the responsible official's office business hours 
for those submitting hand-delivered comments (see Sec.  
218.25(a)(4)(ii)).
    (8) A statement indicating that for objection eligibility each 
individual or representative from each organization submitting specific 
written comments regarding the proposed project or activity must either 
sign the comments or verify identity upon request.
    (9) The acceptable format(s) for electronic comments.
    (10) Instructions on how to obtain additional information on the 
proposed project or activity.
    (c) Publication. (1) Through notice published annually in the 
Federal Register, each Regional Forester shall advise the public of the 
newspaper(s) of record utilized for publishing legal notices required 
by this part.
    (2) Legal notice of the opportunity to comment on a proposed 
project or activity shall be published in the applicable newspaper of 
record identified in paragraph (c)(1) of this section for each National 
Forest System unit. When the Chief is the responsible official, notice 
shall also be published in the Federal Register. The publication date 
of the legal notice in the newspaper of record is the exclusive means 
for calculating the time to submit written comments on a proposed 
project or activity to be analyzed and documented in an EA. The 
publication date of the NOA in the Federal Register is the exclusive 
means for calculating the time to submit written comments on a proposed 
project or activity that is analyzed and documented in a draft EIS.


Sec.  218.25  Comments on proposed projects and activities.

    (a) Opportunity to comment. (1) Time period for submission of 
comments--(i) Environmental assessment. Comments on the proposed 
project or activity shall be accepted for 30 days following the date of 
publication of the legal notice.
    (ii) Draft environmental impact statement. Comments on the proposed 
project or activity shall be accepted for a minimum of 45 days 
following the date of publication in the Federal Register pursuant to 
40 CFR parts 1500 through 1508.
    (iii) Comments. It is the responsibility of all individuals and 
organizations to ensure that their comments are received in a timely 
manner as provided for in paragraph (a)(4) of this section.
    (iv) Extension. The time period for the opportunity to comment on 
environmental assessments shall not be extended.

[[Page 47350]]

    (2) Computation of the comment period. The time period is computed 
using calendar days, including Saturdays, Sundays, and Federal 
holidays. However, when the time period expires on a Saturday, Sunday, 
or Federal holiday, comments shall be accepted until the end of the 
next Federal working day (11:59 p.m.).
    (i) Environmental assessment (EA). The 30-day comment period for 
proposed projects or activities to be analyzed and documented in an EA 
begins on the first day after publication of the legal notice.
    (ii) Draft environmental impact statement (EIS). The 45-day comment 
period for proposed projects or activities that are analyzed and 
documented in a draft EIS begins on the first day after publication of 
the NOA in the Federal Register.
    (3) Requirements. Individuals and entities wishing to be eligible 
to object must provide the following during the comment period:
    (i) Name and address.
    (ii) Title of the proposed project or activity.
    (iii) Specific written comments as defined in Sec.  218.2 regarding 
the proposed project or activity, along with supporting reasons that 
the responsible official should consider in reaching a decision.
    (iv) Signature or other verification of identity upon request; 
identification of the individual or entity who authored the comment(s) 
is necessary for objection eligibility.
    (A) For objections listing multiple entities or multiple 
individuals, a signature or other means of verification must be 
provided for the individual authorized to represent each entity and for 
each individual in the case of multiple names, to meet objection 
eligibility requirements.
    (B) Those using electronic means may submit a scanned signature. 
Otherwise another means of verifying the identity of the individual or 
entity representative may be necessary for electronically submitted 
comments.
    (v) Individual members of an entity must submit their own comments 
to meet the requirements of objection eligibility; comments received on 
behalf of an organization are considered as those of the organization 
only.
    (4) Evidence of timely submission. When there is a question about 
timely submission of comments, timeliness shall be determined as 
follows:
    (i) Written comments must be postmarked by the Postal Service, 
emailed, faxed, or otherwise submitted (for example, express delivery 
service) by 11:59 p.m. on the 30th calendar day following publication 
of the legal notice for proposed projects or activities to be analyzed 
and documented in an EA or the 45th calendar day following publication 
of the NOA in the Federal Register for a draft EIS.
    (ii) Hand-delivered comments must be time and date imprinted at the 
correct responsible official's office by the close of business on the 
30th calendar day following publication of the legal notice for 
proposed projects or activities to be analyzed and documented in an EA 
or the 45th calendar day following publication of the NOA in the 
Federal Register for a draft EIS.
    (iii) For emailed comments, the sender should normally receive an 
automated electronic acknowledgment from the agency as confirmation of 
receipt. If the sender does not receive an automated acknowledgment of 
the receipt of the comments, it is the sender's responsibility to 
ensure timely receipt by other means.
    (b) Consideration of comments. (1) The responsible official shall 
consider all written comments submitted in compliance with paragraph 
(a) of this section.
    (2) All written comments received by the responsible official shall 
be placed in the project file and shall become a matter of public 
record.


Sec.  218.26  Objection time periods.

    (a) Time to file an objection. Written objections, including any 
attachments, must be filed with the reviewing officer within 45 days 
following the publication date of the legal notice of the EA or final 
EIS in the newspaper of record or the publication date of the notice in 
the Federal Register when the Chief is the responsible official (see 
Sec.  218.7(c)). It is the responsibility of objectors to ensure that 
their objection is received in a timely manner.
    (b) Time for responding to an objection. The reviewing officer must 
issue a written response to the objector(s) concerning their 
objection(s) within 45 days following the end of the objection-filing 
period. The reviewing officer has the discretion to extend the time for 
up to 10 days when he or she determines that additional time is 
necessary to provide adequate response to objections or to participate 
in resolution discussions with the objector(s).

Subpart C--Provisions Specific to Proposed Projects Authorized 
Under the Healthy Forests Restoration Act


Sec.  218.30  Applicability and scope.

    This subpart includes provisions that are specific to proposed 
hazardous fuel reduction projects documented with a Record of Decision 
or Decision Notice, and authorized under the Healthy Forests 
Restoration Act (HFRA). The sections of this subpart must be considered 
in combination with the general provisions of subpart A for the full 
complement of regulatory direction pertaining to predecisional 
administrative review of the applicable projects and activities.


Sec.  218.31  Authorized hazardous fuel reduction projects subject to 
objection.

    (a) Only authorized hazardous fuel reduction projects as defined by 
the HFRA, section 101(2), occurring on National Forest System land that 
have been analyzed in an EA or EIS are subject to this subpart. 
Authorized hazardous fuel reduction projects processed under the 
provisions of the HFRA are not subject to the requirements in subpart B 
of this part.
    (b) When authorized hazardous fuel reduction projects are approved 
contemporaneously with a plan amendment that applies only to that 
project, the objection process of this part applies to both the plan 
amendment and the project.


Sec.  218.32  Objection time periods.

    (a) Time to file an objection. Written objections, including any 
attachments, must be filed with the reviewing officer within 30 days 
following the publication date of the legal notice of the EA or final 
EIS in the newspaper of record or the publication date of the notice in 
the Federal Register when the Chief is the responsible official (see 
Sec.  218.6(c)). It is the responsibility of objectors to ensure that 
their objection is received in a timely manner.
    (b) Time for responding to an objection. The reviewing officer must 
issue a written response to the objector(s) concerning their 
objection(s) within 30 days following the end of the objection-filing 
period.

    Dated: July 19, 2012.
Thomas L. Tidwell,
Chief, Forest Service.
[FR Doc. 2012-19302 Filed 8-7-12; 8:45 am]
BILLING CODE 3410-11-P