[Federal Register Volume 91, Number 25 (Friday, February 6, 2026)]
[Proposed Rules]
[Pages 5387-5398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-02392]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 218
RIN 0596-AD69
Project-Level Predecisional Administrative Review Process
AGENCY: Forest Service, Agriculture (USDA).
ACTION: Proposed rule; request for public comment.
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SUMMARY: The U.S. Department of Agriculture's Forest Service is
proposing to amend its Project-Level Predecisional Administrative
Review Process regulations. These regulations establish the process by
which the public may file objections seeking administrative review for
projects and activities implementing land management plans on national
forests. The Forest Service is amending these regulations to
consolidate and streamline processes, increase efficiency, and better
align with the Agency's statutory obligations and recent rescissions
and revisions to National Environmental Policy Act regulations.
DATES: Comments must be received in writing by March 9, 2026.
ADDRESSES: Comments, identified by RIN 0596-AD69, should be sent via
one of the following methods:
Electronically (preferred): through the Federal
eRulemaking Portal: https://www.regulations.gov; or
Mail: addressed to the Director, Ecosystem Management
Coordination, 201 14th Street SW, Mailstop 1108, Washington, DC 20250-
1124.
Comments should be confined to issues pertinent to the proposed
rule, should explain the reasons for any recommended changes, and
should reference the specific section and wording being addressed,
where possible. All timely comments, including names and addresses when
provided, will be placed in the record and will be available for public
inspection and copying. Comments may be viewed on the Federal
eRulemaking Portal at https://www.regulations.gov by searching for RIN
0596-AD69. Please do not include in your comments information of a
confidential nature, such as sensitive personal information or
proprietary information. Please note that comments containing any
routine notice about the confidentiality of the communication will be
treated as public comments that may be made available to the public,
notwithstanding the inclusion of the routine notice.
FOR FURTHER INFORMATION CONTACT: Joshua White, Acting Director,
Ecosystem Management Coordination, 202-205-0650. Individuals who are
deaf, hard of hearing, or have a speech disability may call 711 to
reach the Telecommunications Relay Service and then provide the phone
number of the person named as a point of contact for further
information.
SUPPLEMENTARY INFORMATION:
I. Background
The Forest Service is proposing to amend the Project-Level
Predecisional Administrative Review Process regulations at 36 CFR part
218 (hereinafter 36 CFR 218). The proposed amendments conform to
statutory requirements for predecisional administrative review in the
Healthy Forests Restoration Act of 2003 (Pub. L. 108-148; 16 U.S.C.
6515), the Consolidated Appropriations Act of 2012, section 428 (Pub.
L. 112-74), and the Consolidated Appropriations Act of 2014, section
431 (Pub. L. 113-76). The revised regulations also align the
administrative review process with applicable National Environmental
Policy Act (NEPA) regulations and simplify and streamline processes to
ensure the Forest Service conducts administrative review in a timely
and efficient manner.
[[Page 5388]]
Certain Forest Service decisions have been subject to an appeal
process since 1907 and underwent several changes from that time to the
early 1990s. In 1992, Congress enacted the Interior and Related
Agencies Appropriation Act of Fiscal Year 1993 (commonly referred to as
the ``Appeals Reform Act'') (Pub. L. 102-381; 106 Stat. 1419). Section
322 of the Appeals Reform Act required the Forest Service to establish
a notice and comment process for proposed actions implementing land
management plans and modified the Agency's existing appeals process. In
2003, in response to the Appeals Reform Act, the Healthy Forests
Restoration Act (HFRA) required the Secretary of Agriculture to
promulgate ``regulations to establish a predecisional administrative
review process'' to ``serve as the sole means by which a person can
seek administrative review regarding an authorized hazardous fuel
reduction project on Forest Service land.'' 16 U.S.C. 6515(a)(1). For
hazardous fuel reduction projects conducted under HFRA, the HFRA
regulations replaced subsections (c), (d), and (e) of section 322 of
the Appeals Reform Act that required a notice, comment, and post-
decision administrative appeal process for proposed actions of the
Forest Service relating to certain land and resource management
projects.
Specifically for projects subject to HFRA, section 105 required the
Secretary to create a process whereby eligible parties could
participate in a predecisional administrative review process ``after
the completion of the [relevant project's] environmental assessment or
environmental impact statement'' but before ``the date of the issuance
of the final decision approving the project'' (16 U.S.C. 6515(a)(2),
(3)).
On December 23, 2011, President Obama signed into law the
Consolidated Appropriations Act of 2012 (Pub. L. 112-74). Section 428
of the Consolidated Appropriations Act expanded the scope of the HFRA
predecisional administrative review process to include projects other
than those authorized under HFRA. It requires the Secretary to ``apply
section 105(a)'' of the HFRA, ``providing for a predecisional objection
process, to 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 or Decision
Notice. . .'' Id.
The 2012 Consolidated Appropriations Act section 428 also directs
that HFRA section 105 predecisional administrative review be applied in
lieu of subsections (c), (d), and (e) of section 322 of the Appeals
Reform Act. Congress formally repealed the Appeals Reform Act in the
2014 Farm Bill (Pub. L. 113-79 title VIII, subpart A (128 Stat. 913,
February 7, 2014) at section 8006).
The 2012 Consolidated Appropriations Act further clarified 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.'' Id. The Forest Service thereafter amended
its Project-Level Predecisional Administrative Review Process
regulations in compliance with section 428 on March 27, 2013 (78 FR
18481).
II. Need for Rulemaking
Since these regulations were last amended in 2013, more recent
statutory and regulatory actions require the Forest Service to further
amend its administrative review process. The Consolidated
Appropriations Act of 2014, section 431 (Pub. L. 113-76) exempts
projects or activities from the predecisional administrative review
process that are categorically excluded from documentation in an
environmental assessment or environmental impact statement. The
proposed rule adds this provision in section 218.5,
Projects and Activities Not Subject to the Objection Process
On April 11, 2025, the Council for Environmental Quality (CEQ)
issued an Interim Final Rule rescinding its NEPA implementing
procedures at 40 CFR parts 1500 through 1508. On July 3, 2025, the U.S.
Department of Agriculture (USDA) published an Interim Final Rule
revising its NEPA regulations at 7 CFR subtitle A part 1b (hereinafter
7 CFR 1b) and rescinding Forest Service NEPA regulations at 36 CFR 220.
The 36 CFR 218 administrative review process is inconsistent with
applicable NEPA regulations. This proposed rule amending 36 CFR 218
aligns the predecisional administrative review process with the 7 CFR
1b regulations. The Department acknowledges that the final rule for the
7 CFR 1b regulations has not yet been published. To ensure proposed
changes align with the final Department NEPA regulations, the effective
date for the final rule for proposed revisions to 36 CFR 218 will occur
after the 7 CFR 1b final rule has been published. It is the
Department's intention that these regulations are to be applied in a
manner consistent with the applicable NEPA regulations.
In addition to the updates required by statutory and regulatory
changes, the Forest Service is proposing other revisions to 36 CFR 218
to provide for a more efficient and effective administrative review
process. Experience in implementing the objection process over the last
12 years has demonstrated that reviewing objection issues is time-
consuming for both the public and Agency staff, often resulting in
lengthy documents and delays. The current comment and objection
processes outlined in the regulations add, at a minimum, 120 to 150
days for an EA and FONSI and 135 to 165 days for an EIS and ROD. This
does not account for additional time needed for the responsible
official to respond to instructions, if any, provided by the objection
reviewing officer. Neither HFRA nor the other statutes governing the
administrative review process mandate a specific length for the comment
or objection periods. The Forest Service has examined the various
timeframes associated with the comment and objection periods and
proposes reducing them to a more reasonable length to align with recent
statutory and regulatory changes to NEPA and avoid delays in project
analysis and environmental review, objection response, and project
implementation.
The Forest Service has also noted a lack of consistency in its
review of objection issues. To increase efficiency and consistency in
the review process, the proposed rule would focus the Agency's
objection response on identifying those objections reviewed in whole or
in part (meaning some issues were set aside from review), identifying
those objections or issues set aside from review and reasons for this,
and identifying changes to be made prior to finalizing the finding of
no significant impact (FONSI) or record of decision (ROD). The proposed
rule also increases consistency by eliminating the process and timeline
differences between HFRA and non-HFRA projects. Under the proposed
rule, the administrative review process is the same for HFRA and non-
HFRA projects, except that there is no emergency authority for HFRA
projects. This is because section 428 of the 2012 Consolidated
Appropriations Act applies emergency authority only to non-HFRA
projects.
The proposed rule would also provide the Forest Service with
additional
[[Page 5389]]
flexibility in the review process. Proposed revisions would remove a
required additional level of review above the responsible official and
clarify the authority of the Secretary of Agriculture and the Under
Secretary for Natural Resources and Environment.
Other proposed changes to 36 CFR 218 include modernizing the
Agency's information exchange methods to rely more consistently on
technology generally available to the public and addressing information
security. The Forest Service would no longer publish comment and
objection notices in a newspaper of record, but would publish notices
on the USDA website where other project documents are also published.
The Forest Service would also no longer accept facsimile submissions or
external media (such as CD-ROMs or external hard drives). Objection
responses would no longer be mailed to objectors, as is the current
process, although not required by 36 CFR 218. Instead, responses would
be published on the USDA website where other associated project
documents are also published.
III. Section-by-Section Explanation of the Proposed Rule
This summary describes the proposed amendments for each section, as
well as the rationale. Generally, references to rescinded NEPA
regulations at 40 CFR parts 1500-1508 and 36 CFR 220 have been removed
in all sections. The basic organization of this part has also been
modified. Current regulations at 36 CFR 218 are organized into three
subparts to clearly delineate the distinct administrative review
requirements between HFRA and non-HFRA projects. The administrative
review process is the same for HFRA and non-HFRA projects in the
proposed rule, with one minor exception, so the three subparts are
combined into one part to eliminate redundancy.
218.1 Purpose, Applicability, and Scope
This section combines 218.1, 218.20 and 218.30. Section 218.1,
paragraphs (a), (b), and (c) are removed. In this section, reference to
HFRA or non-HFRA projects is removed and replaced with a single
administrative review process for all qualifying projects and
activities implementing land management plans documented with a FONSI
or ROD.
218.2 Definitions
Definitions of the following terms are added or amended to align
with definitions in NEPA and the applicable NEPA regulations (7 CFR 1b)
or to address terminology used in the proposed rule: Commenter, Contact
information, Environmental assessment, Environmental documents,
Environmental impact statement, Finding of no significant impact,
Issue, Mitigations, Objection, Proposal (or Project), Project record
(or Proposal record), Recommendations, Record of decision, Scope, and
Substantive.
``Address'' is removed and included under ``Contact information''.
``Authorized hazardous fuel reduction project'' is removed, as all
projects will now apply the same comment and objection processes.
``Decision notice'' is removed because it is replaced with a
finding of no significant impact, in alignment with 7 CFR 1b.
``Lead objector'' was updated to include Commenter in the
definition.
``Newspaper(s) of record'' is removed along with the requirements
to publish legal notices.
``Objection filing period'' is removed because this is covered in
218.7.
``Objection process'' is removed, as part of the intent of the
regulations is to outline this process.
``Objector'' was updated to provide clarity on how this status is
achieved.
``Responsible official'' is updated to align with the definition in
the applicable NEPA regulations.
``Specific written comments'' was updated to use terminology
consistent with 7 CFR 1b (issue, scope, substantive).
218.3 Designated Opportunity for Public Comment
This section is amended to address the designated opportunity for
public comment instead of ``Reviewing officer'' (removed). The role of
a reviewing officer is eliminated as it is not statutorily required. As
the Agency continues to navigate organizational change and streamline
processes, it is more efficient and effective to allow the objection
process to remain with the responsible official and interdisciplinary
team most familiar with the project or activities that are subject to
the objection process. Any reference to ``reviewing officer''
throughout the regulations has been removed and replaced with
``responsible official.''
USDA NEPA regulations at 7 CFR 1b.5 do not require a designated
opportunity for public comment for an environmental assessment (EA). In
addition, NEPA requires the notice of intent to publish an
environmental impact statement (EIS) to include a request for public
comment; however, publication of a draft EIS is not required in 7 CFR
1b. Section 218.3 clarifies that the responsible official would offer
an opportunity for public comment for EAs and EISs when subject to the
objection process (as now specified in 218.4) to establish eligibility
to participate in objections for eligible projects. The designated
opportunity for public comment for an EIS may be combined with the
request for comment included in the notice of intent to prepare an EIS,
as required by NEPA. This section also establishes: the length of the
designated opportunity for public comment (timeframes are reduced and
apply differently for EAs and EISs to allow for timely environmental
reviews as now statutorily required by NEPA for EAs and EISs); minimum
information to be provided by the responsible official for comment (to
ensure entities and individuals have adequate information to comment
on); requirements for providing timely and specific written comments
(to allow for more effective review to inform the decision-making
process); and the requirement for the responsible official to consider
comments (to effectively inform the decision-making process).
The time to file comments for a proposed action to be documented in
an EA has been reduced from 30 days to 10 days, and from 45 days to 20
days for a proposed action to be documented in an EIS. These changes
correspond with new statutory page limits for EAs and EISs (75 pages
for an EA; 150 pages for an EIS, or 300 pages if the proposed Agency
action is of extraordinary complexity). With shorter environmental
documents, commenters will require less time to review, comment, or
object.
The requirement to publish a legal notice in a newspaper of record
(or Federal Register) for the opportunity to comment is removed, and a
requirement is added to publish notice on the USDA website where the EA
or EIS (or information associated with these documents) is published.
Newspapers are no longer the primary information source for much of the
population. Furthermore, many newspapers have gone to reduced
publications, with some smaller papers only publishing once a week,
every other week, or once a month, and so forth. This is causing
unnecessary project delays while waiting for legal notices to be
published in the newspaper. Additionally, the cost to publish a legal
notice in a newspaper has increased significantly over the last decade,
with some larger newspapers charging thousands of dollars to publish
one legal notice. This is not a responsible use of taxpayer dollars.
Furthermore, there is a large
[[Page 5390]]
administrative workload associated with publishing and paying for legal
notices. Finally, with rescission of the CEQ NEPA regulations, there is
no longer a requirement to file a draft EIS with the Environmental
Protection Agency. Therefore, a notice of availability is no longer
published in the Federal Register for a draft EIS, which was the
mechanism previously used to begin the designated opportunity for
public comment for an EIS. The requirement to post notice on a USDA
website is a more modern, cost-effective, efficient, and consistent way
to inform individuals and entities about the opportunity to comment.
This section addresses how the responsible official would review
multiple comment submissions from the same individual or entity (to
reduce unnecessary administrative workload for Agency personnel and
streamline the review process), limits submission to certain formats
(to account for security and software policies and modern technology),
and provides limited exceptions for including referenced documents and
attachments (to reduce unnecessary review of redundant documentation).
218.4 Projects and Activities Subject to the Objection Process
This section is amended to specify those projects and activities
that are subject to the objection process, as statutorily required,
instead of those not subject to the objection process (now moved to
218.5). This section identifies projects and activities implementing
land management plans, and proposed project-specific plan amendments to
a land management plan included as part of a project or activity, as
the actions that are subject to objection. This section also replaces
the previous sections 218.22 ``Proposed projects and activities subject
to legal notice and opportunity to comment'' and 218.24 ``Notification
of opportunity to comment on proposed projects and activities,'' and no
longer includes a reference to proposed research activities as a
project or activity that is subject to legal notice and opportunity to
comment.
218.5 Projects and Activities Not Subject to the Objection Process
This section is amended to specify those projects and activities
that are not subject to the objection process instead of specifying who
may file an objection (now moved to 218.6). This section replaces the
previous section 218.23 ``Proposed projects and activities not subject
to the objection process.''
This section is rewritten to clarify when the objection process
does not apply. Projects that receive no timely, substantive written
comments have been added to this section. It specifies that the
objection process does not apply to FONSIs or RODs updated to
incorporate changes from the objection process, or to new FONSIs or
RODs that do not change the Agency's finding or decision. A reference
to projects developed under statutory emergency authorities not subject
to objections has been added for clarity, including emergency
situations requiring immediate action. An analysis being relied on that
has already been through an objection process, a previous Forest
Service administrative review process, or another agency's pre- or
post-decisional administrative review process would also not be subject
to further review during the objection process. Language has been
updated regarding emergency authority projects that would not be
subject to objection, as exempted by statute.
218.6 Who May File an Objection
This section is amended to specify who may file an objection, which
was previously discussed at 218.5. This section replaces the previous
section 218.6 ``Computation of time periods'' (moved to 218.3).
Discussion of comments received from an authorized representative(s) of
an entity has also moved to 218.3. Discussion of objections that list
multiple individuals or entities has moved to 218.9. Discussion of how
objections would be processed if the objection does not identify a lead
objector has moved to 218.11.
218.7 Objection Filing Period
This section is amended to specify the filing period for the
objection process, which was previously discussed at 218.6. This
section replaces the previous section 218.7 ``Giving notice of
objection process for proposed projects and activities subject to
objection'' (moved to 218.8 and now called ``Notice of opportunity to
object'').
Similar to the designated opportunity for public comment, the
objection filing period is different for an EA versus an EIS. The
filing period was 45 days for objections filed for a draft decision
notice (now FONSI) and draft ROD. The proposed filing period for an
objection filed in response to a draft FONSI is now 10 days, and 20
days for an objection filed in response to a draft ROD. Issues raised
in objection must be tied to issues previously raised in specific
written comments, except for the limited reasons provided, so objectors
should not need more time to submit objections than they needed to
submit comments.
Paragraphs (b) and (c) are updated to remove references to legal
notice and publication in the Federal Register, which are no longer
required. Updated language removes paragraph (d), related to
extensions, and specifies that objection periods would not be extended
(to facilitate timely decision-making and implementation). The
objection filing period is updated (timeframes are reduced and apply
differently for EAs and EISs to allow for timely environmental reviews
and implementation of the project or activities).
218.8 Notice of Opportunity To Object
This section is amended to specify the requirements for giving
notice of the objection process for projects and activities subject to
objection, which was previously discussed at 218.7. This section
replaces the previous section 218.8 ``Filing an objection'' (moved to
218.9).
See the discussion above, under 218.3 ``Designated opportunity for
public comment,'' regarding the removal of the requirement to publish
legal notices in newspapers of record or notice in the Federal Register
for the opportunity to comment. The same rationale is applied to how
notification would be provided for opportunities to object. Notice
would be provided on the USDA website where the EA and draft FONSI, or
the EIS and draft ROD, are published.
This section also specifies that objection periods would not be
extended (to facilitate timely decision-making and implementation).
218.9 Filing an Objection
This section is amended to specify the requirements for filing an
objection and replaces the previous section 218.8 ``Filing an
objection'' (moved to 218.9).
The revised language adds a page limit on the length of objections,
with different lengths allotted for objections to an EA (15 pages) or
an EIS (30 pages). Page is defined for both attachments and objections
submitted via web-based forms. The Fiscal Responsibility Act of 2023
amended NEPA to include page limits for EAs and EISs and convey
Congress's intent that environmental documents not be excessive in
length. Limiting the length of objections ensures a more focused and
effective objection review process and is not unreasonable now that EAs
and EISs must also meet a maximum page limit. Limiting the length of
objections also encourages objectors to submit issue-based objections
as outlined in the requirements in this section.
[[Page 5391]]
Similar to the comment process, this section addresses how the
responsible official would review multiple objection submissions from
the same individual or entity (to reduce unnecessary administrative
workload for Agency personnel and streamline the review process),
limits submission to certain formats, and provides limited exceptions
for including documents and attachments.
The minimum requirements for filing an objection are defined to
ensure that objections are focused and issue-based. This includes
demonstrating the connection between prior specific written comments
for each issue and providing specific recommended actions for the
responsible official to consider for each issue. Limited exceptions are
provided for raising issues not tied to previous comments.
218.10 Evidence of Timely Filing
This section is amended to specify the requirements for evidence of
timely filing, which was previously discussed at 218.9. This section
replaces the previous section 218.10 ``Objections set aside from
review'' (moved to 218.11).
This section removes former paragraph (b), (the requirement for the
Agency to acknowledge receipt of objections) and addresses only
contemporary methods of objection delivery (removes the use of
facsimile submissions).
218.11 Objections or Issues Set Aside From Review
This section is amended to specify the reasons objections would be
set aside from review, which was previously discussed at 218.10. This
section replaces the previous section 218.11 ``Resolution of
objections'' (218.11(a) removed and 218.11(b) moved to 218.12).
Language from section 218.10(b) concerning written notice to
objectors when an objection is set aside from review has been moved to
218.12 ``Review of objections'', with notice only provided in the
objection response published on a USDA website. This section more
clearly defines the elements that would cause an objection to be set
aside from review in whole (218.11(a)), or in part when some issues are
set aside from review (218.11(b)). The responsible official would be
required to set aside objections or issues that meet one or more of the
criteria in section 218.11. Additional criteria for setting aside
objections in whole include objections that only restate previous
comments, objections that, as a whole, refer to the wrong project or
activity or national forest, and submissions received during the
objection filing period that are only supportive in nature. To increase
the efficiency of the objection review process, the proposed rule adds
criteria for setting aside specific issues from review when an
objection includes some issues that lack specificity or relevancy but
contains other issues that warrant review and response.
The revised language removes ``Meetings'' (previously found at
218.11(a)) because resolution meetings are not statutorily required as
part of the objection process and created additional administrative
burdens and unnecessary delays; however, this does not preclude a
responsible official from holding public hearings, public meetings, or
other opportunities for public involvement (in alignment with 7 CFR
1b.9(k)) as deemed useful to inform the decision-making process.
218.12 Review of Objections
This section is amended to specify the requirements for reviewing
objections. This section replaces the previous section 218.12 ``Timing
of project decision'' (moved to 218.13).
This section updates language previously in 218.11(b) regarding the
reviewing officer's (now responsible official's) response to
objections. The proposed rule would establish a reduced response
deadline after the end of the objection filing period, with no
opportunity to extend the response period (to ensure efficient progress
towards project implementation). The response timeline was 45 days for
objections filed on both draft FONSIs and draft RODs, with the option
to extend the response period by 30 days. The proposed response period
would differ for EAs (15 days) and EISs (20 days). The response would
be limited to five pages and state: the objections reviewed in whole or
in part (in part if some issues were set aside from review), objections
or issues set aside from review (if any), and reasons for this, and/or
changes (if any) the responsible official will make before publishing
the final FONSI or ROD. Defining the requirements for responding to
objections would ensure a timely response to objectors that focuses on
clarifying those objections that were reviewed in whole or in part and
appropriately highlights changes made in response to the objections and
issues reviewed.
To increase consistency with the Agency's distribution of other
project-related documents, this section clarifies that publication of
the responsible official's response on a USDA website would be the sole
requirement for distributing the objection response. This section also
retains the language that no further review of the responsible
official's written response to an objection is available from any USDA
official.
218.13 Timing of Finding or Decision
This section is amended to specify the requirements for publishing
the final FONSI or ROD. This section replaces the previous section
218.13 ``Secretary's authority'' (moved to 218.15).
This section updates requirements previously found at 218.12
``Timing of project decision.'' It adds language for promptly
finalizing the FONSI or ROD after any changes included in the objection
response are completed. It removes the requirement for the reviewing
officer to notify the responsible official, as the responsible official
would be the line officer completing the review. Additionally, it
removes references to a decision notice (DN) and rescinded NEPA
regulations. It adds notification requirements (publication of the
final FONSI or ROD to a USDA website) for various scenarios to align
with 7 CFR 1b.
218.14 Emergency Situations
This section is amended to specify how the procedures set forth in
these regulations would apply to emergency situations requiring
immediate actions, as determined by the Chief or Associate Chief. This
section replaces the previous section 218.14 ``Judicial proceedings''
(moved to 218.16).
218.15 Secretary and Undersecretary Authority
This section is amended to specify how the procedures set forth in
these regulations would apply to the authority of the Secretary and the
Under Secretary. This section replaces the previous section 218.15
``Information collection requirements'' (removed).
This section retains the authority of the Secretary of Agriculture
or the Under Secretary for Natural Resources and Environment (NRE). The
phrase ``projects and activities proposed by the Secretary of
Agriculture or the Under Secretary, Natural Resources and Environment''
is updated to remove the word ``proposed'' and clarifies that projects
and activities finalized, authorized, or approved by the Secretary of
Agriculture or the Under Secretary for NRE are not subject to the
procedures set forth in this part. This provides necessary flexibility
for projects or activities initially proposed by the Forest Service,
for which the Secretary or the Under Secretary chooses to retain the
decision authority
[[Page 5392]]
to authorize or approve the projects or activities.
218.16 Judicial Proceedings
This section is amended to specify judicial proceedings. This
section replaces the previous section 218.16 ``Effective dates''
(removed).
Paragraph (a) is deleted to remove extraneous information not
related to judicial proceedings, and paragraph (b) is retained.
218.17 Severability
This is a new section added to clarify that the sections of these
regulations are separate and severable from one another. It describes
how other sections or portions may remain valid if another section or
portion is stayed or determined to be invalid.
IV. Transition
It is anticipated that a final rule amending the objection process
at 36 CFR 218 will be published and made effective within a reasonable
time after publication of this proposed rule. The following transition
guidelines will apply to projects already underway on the effective
date of the final rule.
When a proposed action that is subject to 36 CFR 218 has already
provided a designated opportunity for public comment prior to the
publication of this proposed rule, the objection process as it was
established prior to the proposed rule will apply.
Projects subject to 36 CFR 218 that initiate the designated
opportunity for public comment after the publication of this proposed
rule may include a statement in the notice for opportunity to comment
that the FONSI or ROD may be subject to the revised objection process
if the final 36 CFR 218 rule is published before the project's
objection period.
When a proposed action that is subject to 36 CFR 218 has not
initiated a designated opportunity for public comment prior to the
final rule publishing, at such time that a notice of opportunity to
comment is published, it shall apply the final rule.
V. Regulatory Certifications
Regulatory Planning and Review
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget will determine whether a regulatory action is significant as
defined by E.O. 12866 and will review significant regulatory actions.
OIRA has determined that this proposed rule is not significant as
defined by E.O. 12866. E.O. 13563 reaffirms the principles of E.O.
12866 while calling for improvements in the Nation's regulatory system
to promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The Department has developed the proposed rule consistent with
E.O. 13563.
Congressional Review Act
Pursuant to Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C.
801 et seq.), OIRA has designated this proposed rule as not a major
rule as defined by 5 U.S.C. 804(2).
National Environmental Policy Act
The proposed rule would update, consolidate, and streamline the
process by which the public may file objections seeking administrative
review for proposed projects and activities implementing land
management plans on national forests. Departmental regulations at 7 CFR
1b.4(c)(20) exclude from documentation in an environmental assessment
or environmental impact statement ``rules, regulations, or policies to
establish service-wide administrative procedures, program processes, or
instructions.'' The Department's preliminary assessment is that this
proposed rule falls within this category of actions and that no
extraordinary circumstances exist that would require preparation of an
environmental assessment or environmental impact statement. A final
determination will be made upon adoption of the final rule.
Regulatory Flexibility Act
The Department has considered this proposed rule under the
Regulatory Flexibility Act (5 U.S.C. 602 et seq.). This proposed rule
would not have any direct effect on small entities as defined by the
Regulatory Flexibility Act. This proposed rule would not impose
recordkeeping requirements on small entities; would not affect their
competitive position in relation to large entities; and would not
affect their cash flow, liquidity, or ability to remain in the market.
Therefore, the Department has determined that this proposed rule would
not have a significant economic impact on a substantial number of small
entities pursuant to the Regulatory Flexibility Act.
Federalism
The Department has considered this proposed rule under the
requirements of E.O. 13132, Federalism. The Department has determined
that the proposed rule conforms with the federalism principles set out
in this E.O. and would not impose compliance costs on the States; and
would not have substantial direct effects on the States, on the
relationship between the Federal government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, the Department has concluded that this proposed
rule would not have federalism implications.
Consultation and Coordination With Indian Tribal Governments
E.O. 13175, Consultation and Coordination with Indian Tribal
Governments, requires Federal agencies to consult and coordinate with
Tribes on a government-to-government basis on policies that have Tribal
implications, including regulations, legislative comments or proposed
legislation, and other policy statements or actions that have
substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. This proposed rule would update,
consolidate, and streamline the process by which the public may file
objections seeking administrative review for proposed projects and
activities implementing land management plans on national forests. The
Department has reviewed this proposed rule in accordance with the
requirements of E.O. 13175 and has determined that this proposed rule
could have substantial direct effects on Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. Therefore, consultation and coordination
with Indian Tribal governments are required for this proposed rule.
Tribal Summary Impact Statement: On September 29, 2025, Tribes and
Alaska Native Corporations were notified by email about the opportunity
to consult on proposed changes to regulations at 36 CFR part 218. The
Forest Service provided a National Policy Summary Analysis describing
the proposal and identifying how implementation may affect Tribal
governments, Alaska Native Corporations, and the citizens they
represent. This information was also available on the Forest Service
National Consultation web page at https://www.fs.usda.gov/working-with-us/tribal-relations/national-consultation. As of the publication of
this notice, the Forest Service has not received any
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requests for consultation or other feedback on this proposed rule from
Tribes or Alaska Native Corporations.
Family Policymaking Assessment
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a
Family Policymaking Assessment for a rule that may affect family well-
being. The proposed rule would have no impact on the autonomy or
integrity of the family as an institution. Accordingly, the Department
has concluded that it is not necessary to prepare a Family Policymaking
Assessment for the proposed rule.
Takings Implications
The Department has analyzed the proposed rule in accordance with
the principles and criteria in E.O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights. The
Department has determined that the proposed rule would not pose the
risk of a taking of private property.
Energy Effects
The Department has reviewed the proposed rule under E.O. 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Department has determined that the proposed
rule would not constitute a significant energy action as defined in
E.O. 13211.
Civil Justice Reform
The Department has analyzed the proposed rule in accordance with
the principles and criteria in E.O. 12988, Civil Justice Reform. Upon
publication of the proposed rule, (1) all State and local laws and
regulations that conflict with the proposed rule or that impede its
full implementation would be preempted; (2) no retroactive effect would
be given to this proposed rule; and (3) it would 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), the Department has assessed the effects of the
proposed rule on State, local, and Tribal governments and the private
sector. The proposed rule would not compel the expenditure of $100
million or more, adjusted annually for inflation, in any 1 year by
State, local, and Tribal governments in the aggregate or by the private
sector. Therefore, a statement under section 202 of the Act is not
required.
Paperwork Reduction Act
The proposed rule does not contain any recordkeeping or reporting
requirements or other information collection requirements as defined in
5 CFR part 1320 that are not already required by law or not already
approved for use. Accordingly, the review provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing
regulations at 5 CFR part 1320 do not apply.
List of Subjects in 36 CFR Part 218
Administrative practice and procedure, National forests.
Therefore, for the reasons set forth in the preamble, the
Department proposes to amend chapter II of title 36 of the Code of
Federal Regulations as follows:
0
1. Revise part 218 to read as follows:
PART 218--PROJECT-LEVEL PREDECISIONAL ADMINISTRATIVE REVIEW PROCESS
Sec.
218.1 Purpose, applicability, and scope.
218.2 Definitions.
218.3 Designated opportunity for public comment.
218.4 Projects and activities subject to the objection process.
218.5 Projects and activities not subject to the objection process.
218.6 Who may file an objection.
218.7 Objection filing period.
218.8 Notice of opportunity to object.
218.9 Filing an objection.
218.10 Evidence of timely filing.
218.11 Objections or issues set aside from review.
218.12 Review of objections.
218.13 Timing of finding or decision.
218.14 Emergency situations.
218.15 Secretary and Under Secretary authority.
218.16 Judicial proceedings.
218.17 Severability.
Authority: Pub. L. 108-148, 117 Stat. 1887 (16 U.S.C. 6515);
Sec. 428, Pub. L. 112-74, 125 Stat. 1046 (16 U.S.C. 6515 note); Sec.
431, Pub. L. 113-76; Sec. 8006, Pub. L. 113-79.
Sec. 218.1 Purpose, applicability, and scope.
This regulation establishes an administrative review process
(hereinafter referred to as ``objection process'') for proposed actions
of the Forest Service concerning projects and activities implementing
land management plans and documented with a finding of no significant
impact (FONSI) or a record of decision (ROD). The objection process is
the sole means of administrative review for qualifying projects.
Sec. 218.2 Definitions.
The following definitions apply to this part:
Commenter. An individual or entity that submits timely, specific
written comments that meet the requirements outlined in Sec. 218.3.
Contact information. For comments submitted electronically, this is
a current email address at which an entity or individual may be
reached. For comments not submitted electronically, this is a current
phone number or a current physical mailing address where an entity or
individual may be reached.
Entity. For purposes of eligibility to file an objection (Sec.
218.6), an entity includes non-governmental organizations, businesses,
partnerships, state and local governments, Alaska Native Corporations,
and Indian Tribes.
Environmental assessment (EA). See NEPA section 111(4), 42 U.S.C.
4336e(4).
Environmental documents. See NEPA section 111(5), 42 U.S.C.
4336e(5).
Environmental impact statement (EIS). See NEPA section 111(6), 42
U.S.C. 4336e(6).
Finding of no significant impact (FONSI). See NEPA section 111(7),
42 U.S.C. 4336e(7).
Forest Service line officer. The Chief of the Forest Service or a
Forest Service official who serves in the direct line of command from
the Chief.
Issue. A logical cause-and-effect relationship between the actions
proposed (cause) and the reasonably foreseeable impacts (effect) on
resources found in the affected environment.
Lead commenter or objector. The individual or entity identified to
represent all other commenters or objectors (for comments or objections
submitted with multiple individuals and/or entities listed) for the
purposes of communication, written or otherwise, regarding the comments
or objections. (Also see definitions for Commenter and Objector.)
Mitigations. Constraints or requirements that avoid, minimize, or
compensate for adverse impacts caused by a proposed action or selected
alternative, which are documented in a FONSI or ROD and are determined
by the responsible official, in accordance with statutory or regulatory
authority, in reaction to the effects described in an EA or EIS.
Name. The first and last name of an individual or the complete name
of an entity. (An electronic username is insufficient for the
identification of an individual or entity.)
National Forest System land. All lands, waters, or interests
therein administered by the Forest Service (16 U.S.C. 1609).
Objection. The written document filed with a responsible official
by an
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individual or entity seeking administrative review of a project or
activity implementing a land management plan and documented with a
FONSI or ROD.
Objector. An individual or entity filing an objection who meets the
eligibility requirements associated with the filed objection (Sec.
218.6).
Proposal (or Project or Activities). (See NEPA section 111(12), 42
U.S.C. 4336e(12)).
Project record (or proposal record). All relevant documentation and
records, including all environmental analysis documents and comment
submissions, that contain information the responsible official relies
on to make iterative decisions throughout the NEPA process or to
determine if and how the action will be approved.
Recommendations. Actions the responsible official should consider
taking to resolve an issue. Actions may include: choosing not to take
action; modifying alternatives, including the proposed action;
developing and evaluating alternatives that have not been previously
given serious consideration by the responsible official; supplementing,
improving, or modifying analyses; considering science or literature
that has not been previously considered; or making factual corrections.
Record of decision (ROD). A documented determination by the
responsible official on how to proceed with respect to a proposed
action and action alternatives that have reasonably foreseeable
significant impacts on the quality of the human environment, as
described in an environmental impact statement.
Responsible official. The Forest Service employee who has the
authority to determine: when NEPA applies, what level of NEPA review is
appropriate, the extent of environmental review, the final NEPA
finding, and compliance with other applicable laws, regulations, and
executive orders; and how to proceed for a proposed action or action
alternative(s).
Scope. The range of actions and alternatives developed for a
proposal, or the issues and impacts to be considered in an
environmental analysis.
Specific written comments. A written statement that identifies a
substantive issue that is within the scope of the proposed action. See
the definitions provided for issue, scope, and substantive.
Substantive. Information that meaningfully informs the
consideration of reasonably foreseeable impacts on the human
environment, the resulting significance determination or decisions on
how to proceed (that is, alternatives to be considered or analyzed or
the alternative selected for implementation), or compliance with
applicable laws and regulations.
Sec. 218.3 Designated opportunity for public comment.
(a) Designated opportunity. The responsible official shall provide
notice of a designated opportunity for public comment for projects and
activities subject to the objection process (see Sec. 218.4). EAs or
EISs for which an opportunity for public comment or an objection
process has already been provided and that are updated to include
changes stemming from the designated opportunity for public comment or
objection review process, or when issuing updated or supplemental
environmental documents in response to court orders, shall not be
subject to another opportunity for comment.
(b) Notice of opportunity. Notice of the opportunity to comment
will be published on the USDA website where the EA or EIS, or
preliminary information associated with these documents, is published.
The notice shall:
(1) Disclose that the project or activity is subject to the
objection process (Sec. 218.4) unless at any point in the development
and analysis process the project or activity is no longer subject to
the objection process (Sec. 218.5 or Sec. 218.15).
(2) Specify how comments will be submitted (for example, mailing
address, email address, web platform);
(3) State the name and title of the responsible official to whom
the comments are to be addressed;
(4) Specify where the information for comments can be located
electronically;
(5) State the date the notice of opportunity is published on a USDA
website and the dates the designated opportunity for public comment
begins and ends (see paragraphs (c)(2) and (3) of this section); and
(6) Include the requirements for filing comments as found in
paragraphs (e) through (h) of this section or include a link to the
requirements as provided in the Electronic Code of Federal Regulations.
(c) Time to file comments. The length of the designated opportunity
for public comment for a proposed action that is to be documented in an
EA is 10 days, or 20 days for a proposed action that is to be
documented in an EIS, with no extension. Notice of the opportunity to
comment will be published on the USDA website where the EA or EIS, or
preliminary information associated with these project documents, is
published.
(1) 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 (11:59 p.m. in
the time zone of the receiving office for comments filed by electronic
means such as email).
(2) Start date. The date after a notice of an opportunity for
comment is published on a USDA website is the first day of the
designated opportunity for public comment.
(3) End date. The date specified as the last day of the designated
opportunity for public comment, as stated in the notice of opportunity
for comment.
(d) Providing information for comment. The timing of the notice of
a designated opportunity for public comment will be determined by the
responsible official. For an EIS, the opportunity for comment may be
combined with the request for comment included in the notice of intent
to publish an EIS, as required by NEPA Sec. 107(c); 42 U.S.C. 4336a(c)
and the applicable NEPA regulations, and the notice of intent may be
referenced as the place to find the information for comment. The
information provided for comment shall include, at a minimum:
(1) A detailed description of the purpose and need and proposed
action;
(2) Alternatives, if any, already being considered for detailed
analysis, with sufficient description to indicate how each alternative
differs from the proposed action. Discussion may include alternatives
already considered but not carried forward for detailed analysis, and
the rationale for this;
(3) Issues to be analyzed in detail. Discussion may include
preliminary anticipated effects associated with issues to be analyzed
in detail, and may also identify those issues considered but not
carried forward for detailed analysis, and the rationale for this; and
(4) Preliminary applicable laws and regulations that the
responsible official will consider for compliance during the
environmental review process.
(e) Comment requirements. To be eligible to submit an objection,
individuals and entities must provide the following in writing during
the designated opportunity for public comment:
(1) Commenter's name and contact information;
(2) The name of the project or activity and the name(s) of the
national forest(s) on which the project or activity will be
implemented;
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(3) Specific written comments, along with supporting reasons.
Commenters should also provide recommendations for the responsible
official to consider that would remedy the issues raised; and
(4) Identification of the individual or entity who authored the
comment(s) and, when multiple names are listed on a comment,
identification of the lead commenter. Individual members of an entity
must submit their own comments to establish personal eligibility to
object. Comments received on behalf of an entity are considered as
those of the entity only.
(f) Timeliness. It is the commenter's responsibility to ensure the
timely filing of a comment in accordance with the notice. Timeliness
must be determined by the following indicators:
(1) The date of the U.S. Postal Service postmark for a hard-copy
comment received before the close of the fifth business day after the
designated opportunity for public comment,
(2) The shipping date for delivery by private carrier for a hard-
copy comment received before the close of the fifth business day after
the designated opportunity for public comment, or
(3) The Agency's electronically generated date and time for email
and web-based platforms.
(g) Submission format. Comments submitted on or via electronic
external media (such as CD-ROMs or external hard drives) shall not be
accepted due to computer security policies. If comments from the same
entity or individual are submitted in more than one format (for
example, hard-copy, email, and electronically through web-based
platforms), the responsible official will accept and review only one
submission at their discretion. Objections submitted electronically
must be in .doc, .docx, .pdf, or .txt document formats or provided on
an Agency web-based platform. Documents must not have permission
restrictions for printing, copying, or accessing text by screen reader
devices.
(h) References and attachments. The following documents may be
incorporated by reference in the comments submitted. Other documents,
attachments, or website links are not allowed except as specified.
(1) All or part of a Federal law or regulation.
(2) Forest Service directives and land management plans.
(3) Documents referenced by the Forest Service in the information
provided for comment.
(4) Science or literature may be considered if the commenter
clearly identifies the cause-and-effect issues relating literature to
the environmental analysis. Science or literature must be included as
an attachment in portable document format (.pdf) that does not have
permission restrictions for printing, copying, or accessing text by
screen reader devices. Website links will not be accepted.
(i) Comment consideration. The responsible official shall consider
all specific written comments to identify the substantive issues raised
and the recommendations made to remedy the issues. All written comments
received by the responsible official shall be placed in the project
record and shall become a matter of public record.
Sec. 218.4 Projects and activities subject to the objection process.
The objection process applies to:
(a) Projects and activities implementing land management plans for
which an EA is prepared, including Healthy Forests Restoration Act
(HFRA) projects;
(b) Projects and activities implementing land management plans for
which an EIS is prepared, including HFRA projects; and
(c) Amendments to a land management plan that are included as part
of a project or activity covered in paragraphs (a) or (b) of this
section, which are applicable only to that project or activity.
Sec. 218.5 Projects and activities not subject to the objection
process.
(a) The objection process does not apply when:
(1) No timely, specific written comments regarding the project or
activity are received during the designated opportunity for public
comment (see Sec. 218.3);
(2) Any project or activity is categorically excluded from
documentation in an EA or EIS;
(3) Proposed land management plans, plan revisions, and plan
amendments are subject to the objection process set forth in part 219,
subpart B of this chapter;
(4) A FONSI or ROD is updated to incorporate changes stemming from
the objection review process or when otherwise issuing an updated FONSI
or ROD that does not change the Agency's original finding or decision;
(5) Rules are 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); or
(6) Authorizing the following:
(i) Emergency Situation Determinations issued under section 40807
of the Infrastructure and Investment Jobs Act of 2021 or determinations
of emergency situations pursuant to any applicable emergency
authorities.
(ii) Emergency situations pursuant to Sec. 218.14.
(b) For projects or components of projects that rely on other
environmental analyses that have already been through the objection
process of this part, a previous Forest Service administrative review
process, or another agency's pre- or post-decisional administrative
review process, the environmental analysis relied upon shall not be
subject to objection review.
Sec. 218.6 Who may file an objection.
(a) Individuals and entities, including Federally recognized Indian
Tribes and Alaska Native Corporations, that submitted comments in
response to the designated opportunity to comment as required in Sec.
218.3 and in accordance with Sec. 218.3(e) through (h) for a project
or activity subject to this part may file an objection. Objections from
one or more individuals or entities must identify a lead objector
(Sec. 218.9(d)(2)).
(b) Federally recognized Indian Tribes and Alaska Native
Corporations are also eligible to file an objection when specific
written comments are provided during Federal-Tribal consultations.
(c) Federal agencies may not file objections.
(d) Federal employees who otherwise meet the requirements of this
regulation 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.
Sec. 218.7 Objection filing period.
(a) Time to file an objection. Written objections must be filed
with the responsible official within 10 days following the publication
of the draft FONSI or 20 days following the publication of the draft
ROD on a USDA website. The objection filing period will not be
extended. Computation will follow Sec. 218.3(c)(1).
(b) Start date. The day after publication of the draft FONSI (for
an EA) or draft ROD (for an EIS) required by paragraph (c) of this
section is the first day of the objection filing period.
(c) Publication date. The publication date of the draft FONSI or
draft ROD on a USDA website is the exclusive means for calculating the
time to file an objection. The most recent version of the applicable EA
or EIS may be published prior to publication of the draft FONSI or
draft ROD, but it must
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be available to the public at the time the draft FONSI or draft ROD is
published. The responsible official shall ensure the term ``draft'' is
included in the title of the FONSI or ROD for purposes of publishing
the documents for the objection process.
(d) End date. The date specified as the last day of the objection
period as stated in the notice of opportunity to object (Sec.
218.8(b)(5)). Objectors may not rely on dates or timeframe information
provided by any other source.
Sec. 218.8 Notice of opportunity to object.
(a) For projects and activities subject to the objection process
(see Sec. 218.4), the responsible official shall offer eligible
individuals and entities (see Sec. 218.6) an opportunity to object.
Notice of the opportunity to object will be published on the USDA
website where the applicable EA and draft FONSI or EIS and draft ROD
are published.
(b) The notice shall be posted on a USDA website on the same day as
the draft FONSI or draft ROD and must:
(1) Specify how objections will be submitted (for example, mailing
address, email address, web platform);
(2) State the name and title of the responsible official offering
the opportunity to object);
(3) Specify where the EA and draft FONSI, or the EIS and draft ROD,
can be located electronically;
(4) Identify the date the draft FONSI or draft ROD was published on
a USDA website and specify the start date of the objection filing
period, as determined in accordance with Sec. 218.7(b);
(5) Identify the objection filing period end date, as determined in
accordance with Sec. 218.7(d); and
(6) Include the requirements for filing an objection as found in
Sec. 218.9 or include a link to the requirements as provided in the
Electronic Code of Federal Regulations.
Sec. 218.9 Filing an objection.
(a) Objections must be filed with the responsible official in
writing and shall be formatted to be no longer than 15 pages for an EA
and draft FONSI or 30 pages for an EIS and draft ROD (not including
documents and attachments as permitted in paragraph (b) of this
section).
(1) For objections submitted electronically, a page is defined as
8.5 by 11 inches with one-inch margins, in at least 12-point
proportionally spaced font, and single-spaced. Electronic documents
must be in .doc, .docx, .pdf, or .txt document formats and must not
have permission restrictions for printing, copying, or accessing text
by screen reader devices. For objections submitted via web-based forms
(not uploaded as an electronic document), a page is defined as 500
words.
(2) Objections submitted on or via electronic external media (such
as CD-ROMs or external hard drives) shall not be accepted due to
computer security policies. If objections from the same entity or
individual are submitted in more than one format (for example, hard-
copy, email, and electronically through web-based platforms), the
responsible official will accept and review only one submission at
their discretion. (b) The following documents may be incorporated by
reference. Other documents, attachments, or website links are not
allowed except as specified.
(1) All or part of a Federal law or regulation.
(2) Forest Service directives and land management plans.
(3) Documents referenced by the Forest Service in the project EA or
EIS, or the draft FONSI or draft ROD, that are subject to objection.
(4) Comments previously provided to the Forest Service by the
objector during the opportunity for public comment.
(5) Science or literature not previously considered that was
published or otherwise made available after the designated opportunity
for public comment may be considered at the responsible official's
discretion if the objector clearly identifies the cause-and-effect
issues relating the literature to the environmental analysis. The
science or literature must be included as an attachment in portable
document format (.pdf) that does not have permission restrictions for
printing, copying, or accessing text by screen reader devices. Website
links will not be accepted.
(c) Issues raised in objections must be based on previously
submitted specific written comments provided by the objector during the
designated opportunity for public comment (see Sec. 218.3(e), Comment
requirements) unless based on:
(1) Modified alternatives, including the proposed action;
(2) Alternatives not previously analyzed;
(3) Supplemental or modified analyses;
(4) Consideration of science or literature not previously
considered because it was published after the designated opportunity to
comment, and the objector clearly identifies cause-and-effect issues
relating the literature to the environmental analysis.
(d) At a minimum, an objection must include the following:
(1) Objector's name and contact information;
(2) When multiple names are listed on an objection, identification
of the lead objector;
(3) The name of the project or activity and the name(s) of the
national forest(s) on which the project or activity will be
implemented;
(4) Clearly stated issues, and for each issue:
(i) A statement that demonstrates the connection between the issue
included in the objection and the issue as it was included in prior
specific written comments or a statement indicating the issue is based
on one or more of the exceptions in paragraph (c); and
(ii) Clearly articulated recommendations for the responsible
official to consider taking and/or clearly stated specific mitigations
for the responsible official to consider (with statutory or regulatory
authority for the mitigation specified) when finalizing the FONSI or
ROD.
Sec. 218.10 Evidence of timely filing.
It is the objector's responsibility to ensure the timely filing of
a written objection with the responsible official. Timeliness will 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 period;
(b) The shipping date for delivery by private carrier for an
objection received before the close of the fifth business day after the
objection filing period; or
(c) The Agency's electronically generated posted date and time for
email and web-based platforms.
Sec. 218.11 Objections or issues set aside from review.
(a) The responsible official must set aside as a whole and not
review an objection when one or more of the following apply:
(1) Objections are not filed in a timely manner (see Sec. 218.10);
(2) The project or activity is not subject to the objection process
(see Sec. 218.5);
(3) The individual or entity submitting the objection did not
submit specific written comments regarding the project or activity
during the designated opportunity for public comment in accordance with
Sec. 218.3(e) through (h);
(4) The objection only restates or cites previously submitted
comments;
(5) The objection, as a whole, refers to the wrong proposal or
national forest (or other applicable administrative unit);
(6) The objection does not meet all the requirements of Sec.
218.9;
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(7) The objector withdraws their objection;
(8) The responsible official cancels the objection process for the
project or activity or withdraws the project or activity; and/or
(9) The document is labeled or submitted as an ``objection'' but is
entirely supportive in nature.
(b) The responsible official must set aside objections in part (not
review certain issues in the objection) when one or more of the
following apply to the issue(s) raised:
(1) Not within the scope of the project or activity, or is not
within the responsible official's decision authority (that is, the
responsible official does not have discretion to change certain aspects
of the project or does not have statutory authority to require certain
outcomes);
(2) Refers to the wrong project or national forest (or other
applicable administrative unit);
(3) Contains no statement, or the statement is determined to be
inaccurate, that demonstrates the connection between the issue included
in the objection and the issue as it was included in prior specific
written comments for the project, or indicates the issue is based on
one or more of the exceptions in Sec. 218.9(c); and/or
(4) Contains no clearly articulated recommendations for the
responsible official to consider taking, and/or no clearly stated
mitigation for the responsible official to consider including (with
statutory authority for the mitigation specified), when finalizing the
FONSI or ROD.
Sec. 218.12 Review of objections.
(a) The responsible official shall review the objections and issue
a single written response that does not exceed five pages. A page is
defined as 8.5 by 11 inches with one-inch margins, in at least 12-point
proportionally spaced font, and single-spaced.
(b) The written response shall be issued after the close of the
objection filing period; within no more than 15 days for objections
filed on a FONSI, or 20 days for objections filed on a ROD. The
objection response will be posted on the USDA website where the EA and
draft FONSI, or the EIS and draft ROD, are published.
(1) Computation. All time periods are computed using calendar days,
including Saturdays, Sundays, and Federal holidays. However, when the
time period begins or expires on a Saturday, Sunday, or Federal
holiday, the start or end date is extended to the next Federal working
day.
(2) Start date. The starting date for the objection response period
is the day after the objection filing period ends.
(3) End date. The ending date for the objection response period is
the close of business, 30 calendar days from the start date.
(c) The response shall state the following at a minimum:
(1) The objections that were reviewed in whole or in part (meaning
some issues were set aside from review);
(2) Objections, if any, that were set aside in whole or in part
from review and the reasons for this (see Sec. 218.11(a) and (b)); and
(3) Changes the responsible official will make prior to finalizing
the FONSI or ROD, if any, in response to the issues raised or
recommendations made in the objections that were reviewed in whole or
in part.
(d) No further review within the USDA, to include the Forest
Service, is available for the response to an objection.
Sec. 218.13 Timing of finding or decision.
(a) When an objection response is issued. Upon publishing the
response required in Sec. 218.12, and unless withdrawing the project
or activity, the responsible official shall promptly make any changes
as communicated in the response (Sec. 218.12(b)) and, once complete,
finalize and republish the FONSI or ROD and ensure the term ``draft''
is removed. Notification of the availability of the FONSI or ROD shall
be provided in accordance with the applicable NEPA regulations and also
include notification to any individuals or entities that have filed an
objection, if they are not already included in the notification
process.
(b) When no objections are subject to review. If there are no
eligible objectors or all objections filed are set aside from review
(Sec. 218.11(a) and (b)), the responsible official shall, unless
withdrawing the project or activity, promptly publish the final FONSI
or ROD to a USDA website and provide notification of the availability
of the final FONSI or ROD in accordance with the applicable NEPA
regulations. Unless other statutes or regulations require otherwise,
implementation of the Agency action may occur on, but not before, the
fifth business day following the end of the objection filing period.
(c) When a project is not subject to objection. When a project or
activity is not subject to the objection process (Sec. 218.5),
notification of the availability of the FONSI or ROD shall be provided
in accordance with the applicable NEPA regulations.
Sec. 218.14 Emergency situations.
(a) Circumstances requiring immediate implementation. A situation
may arise where immediate implementation of a proposed project or
activity is needed, such as to provide relief from hazards threatening
human health and safety, mitigate threats to natural resources on
National Forest System or adjacent lands, or avoid a loss of commodity
value sufficient to jeopardize the Agency's ability to accomplish
project objectives directly related to resource protection or
restoration. The determination that immediate implementation is needed
shall be made by the Chief or Associate Chief based on an examination
of the relevant information. When a determination is made by the Chief
or Associate Chief that an emergency situation exists for which
immediate implementation of a proposed project or activity, or portion
thereof, is necessary, the project or activity, or portion thereof,
shall not be subject to the pre-decisional objection process under this
part, and implementation may proceed as follows:
(1) Immediately after notification, when the action is documented
in a FONSI or ROD.
(2) The responsible official shall identify the immediate action
determination made for a project or activity in the notification of the
FONSI or ROD.
(b) Authorized hazardous fuel reduction projects. Determinations
made under this section shall not apply to an authorized hazardous fuel
reduction project under title I of the Healthy Forests Restoration Act
of 2003 (16 U.S.C. 6501 et seq.).
Sec. 218.15 Secretary and Under Secretary authority.
(a) Nothing in this section shall restrict the Secretary of
Agriculture or the Under Secretary for National Resources and
Environment from exercising any statutory authority regarding the
protection, management, or administration of National Forest System
lands.
(b) Projects and activities finalized, authorized, or approved by
the Secretary of Agriculture or the Under Secretary for 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.
[[Page 5398]]
Sec. 218.16 Judicial proceedings.
Any filing for Federal judicial review of a decision covered by
this subpart is premature and inappropriate unless the plaintiff has
exhausted the administrative review process set forth in this part (see
7 U.S.C. 6912(e) and 16 U.S.C. 6515(c)).
Sec. 218.17 Severability.
(a) Severability. The sections of this part are separate and
severable from one another. If any section or portion therein is stayed
or determined to be invalid, or the applicability of any section to any
person or entity is held invalid, it is the agency's intention that the
validity of the remainder of those parts will not be affected, with the
remaining sections and all applications thereof to continue in effect.
Courtney Stevens,
Acting Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 2026-02392 Filed 2-5-26; 8:45 am]
BILLING CODE 3411-15-P