Predecisional Administrative Review Processes

36 CFR 218

Moves projects documented in an Environmental Assessment (EA)/Decision Notice (DN) or Environmental Impact Statement (EIS)/Record of Decision (ROD) from a post-decisional appeals process (36 CFR 215) to a pre-decisional objection process similar to what we have been using for Healthy Forests Restoration Act (HFRA) projects.

Appeals process (215s) will continue to apply to categorically excluded (CE) projects documented in a Decision Memo (DM) because of a court order

Overview – What’s changed?

Published a Proposed Rule revising Part 218 on August 8, 2012

Proposed Rule included a pre-decisional objection processes for HFRA (subparts A and C) and non-HFRA projects (subparts A and B) documented in a ROD or DN; notice and comment (subpart B) required for non-HFRA projects

Published Final Rule March 27, 2013

Overview – The Rule

Subpart A ◦Applies to both HFRA and non-HFRA projects. Key

provisions include: Definitions Reviewing Officer Projects not subject to objection Objector/Objection Requirements Time periods (specifies calendar days) Objection notification requirements Objection resolution Timing of decisions Effective dates

Subpart A - Overview

Subpart A - allows for one level of review◦Reviewing Officer

Next higher level line officer than the responsible official who made the decision District Ranger decision = Forest Supervisor as Reviewing

Officer (can be delegated to Deputy Forest Supervisor) Forest Supervisor decision = Regional Forester as Reviewing

Officer (can be delegated to Deputy Regional Forester) OK to talk to IDT/Responsible Official during resolution meetings

Subpart A

Different!

Subpart A ◦Objectors

Must submit timely, specific written comments during any designated opportunity for public comment, which can include: Scoping Legal notice and comment periods Any other public involvement opportunities requested by

responsible official

Subpart A

Different!

Subpart A ◦Objections – giving notice of objection

No timely or specific written comments = no objection period Must identify project as HFRA or non-HFRA Must make

available final EA or EIS and a draft DN/FONSI or ROD Must publish legal notice of opportunity to object in

newspaper of record Must post legal notice of opportunity to object on web within

4 days of its publication. This is a new requirement!

Subpart A

Different!

Different!

Subpart A ◦Objections

Filed with Reviewing Officer in writing. Incorporation of documents by references is not allowed,

with some exceptions Issues raised must be based on previously submitted

specific written comments, unless issue is based on new information that arose after the opportunity for comment

Evidence of timely filing is responsibility of objector Objections can be set aside from review for a variety of

reasons

Subpart A

Different!

Different!

Subpart A ◦Objections

Resolution of objections Meetings can occur at request of objector or Reviewing Officer Reviewing Officer determines if adequate time exists and

determines meeting location, logistics, format, etc. Meetings open to public Reviewing Officer must respond to objection in writing

Point-by-point response not required Can contain instructions No further review of Reviewing Officer’s response is allowed

Subpart A

Different!

Subpart A ◦Objections

Timing of Decision Responsible Official cannot sign DN or ROD until Reviewing

Officer has responded to objections and all concerns or instructions have been addressed No legal notice of decision required Must inform public of decision 5 day wait period if project was subject to objection

Subpart A

Different!

Effective Dates (sec. 218.16)◦HFRA projects (sec. 218.16(a))

Immediately when scoping begins after March 27, 2013 (sec. 218.16(a)(1))

If scoping began before March 27, 2013, can use ‘old’ version of 218s (sec. 218.16(a)(2))

Immediately if re-scoping or re-issuing notice and comment after March 27, 2013 (sec. 218.16(a)(3))

Subpart A

Effective Dates (sec. 218.16)◦Non-HFRA projects (sec. 218.16(b))

Scoping complete, no legal notice for comment published (sec. 218.16(b)(1)) If scoping indicated project is subject to 215 appeal process and

decision will be signed by September 27, 2013, stay with 215s If scoping indicated project is subject to 215 appeal process and

decision will not be signed by September 27, 2013, move to 218s and notify public

Subpart A

Effective Dates (sec. 218.16)◦Non-HFRA projects (sec. 218.16(b))

Scoping complete, legal notice for comment published (sec. 218.16(b)(2)) If decision will be signed by September 27, 2013, stay with 215s If decision will not be signed by September 27, 2013, move to

218s and notify public Everyone who provided comment during scoping or legal notice

and comment period will have eligibility to object

Subpart A

Effective Dates (sec. 218.16)◦Non-HFRA projects (sec. 218.16(b))

If initiating scoping, re-scoping, or re-issuing notice and comment period after March 27, 2013, follow the 218s (sec. 218.16(b)(3))

Subpart A

Scoping Completed3?

Legal Notice for Comment Period

Published?

Will the decision be

signed within 6 months of the

date of publication of

the final rule in the Federal Register?

Did scoping or other public notification of project, such

as the SOPA, clearly indicate4 the project to be under 36 CFR 215 process?

36 CFR 218 Parts

A&B

36 CFR 218 Parts A&B

Notify all interested and affected parties

36 CFR 215

36 CFR 218 Parts A&B

YES

YES

YES

NO

NO

NO

NO

YES

WHICH ADMINISTRATIVE REVIEW PROCESS APPLIES TO MY EA OR EIS DURING THE TRANSITION PERIOD1, 36 CFR 215 OR 36 CFR 2182?

Notes: 1 Projects where initial public scoping, re-scoping, or re-issuance of notice and comment occurs on or after 3/27/13 are subject to 36 CFR 218 [36 CFR 218.16 (b)(3)].2 Applies to projects and activities implementing land management plans and documented with a DN or ROD. Note that CEs are still subject to 36 CFR 215.3 “Scoping complete” means that PALS has been updated from “developing proposal” to “in progress” and/or more than 30 days has elapsed since the “in progress” date was input into PALS. If PALS was not updated, but the date scoping comments were requested has passed and was before March 27, 2013, scoping is considered complete. If scoping concurrent with publishing of the legal notice, follow flow chart from legal notice box.4 “Clearly indicate” means that the scoping notice told interested and affected publics that the project would be subject to the 215 appeal regulations. If the scoping or the SOPA indicated the project is subject to the 215 appeal regulations, see note 3.

Subpart B◦Describes provisions specific to non-HFRA projects. Key

provisions include: Emergency situations Legal notice and comment process Notification of opportunity to comment Commenting on proposed projects Objection time periods

Subpart B

Subpart B◦Applies only to Non-HFRA Projects ◦Emergency Situations

Granted by Chief or Associate Chief only No objection period required Timeframes for implementation apply according to 36 CFR

220.7(d) for DNs and 40 CFR 1506.10(b)(2) for RODs Public notification required

Subpart B

Different!

Subpart B◦Describes the notice and comment process

Legal notice of opportunity to comment 30 days for an EA; no extension allowed 45 days for an EIS; extension allowed Must post legal notice of opportunity to comment on web within

4 days of its publication. This is a new requirement!

Subpart B

Different!

Subpart B Objection time periods

45 day objection period for EAs 45 day objection period for EISs

Objection response period 45 days for Reviewing Officer to respond

Discretion to extend for 30 days

Subpart B

Different!

Subpart C Applies to HFRA projects only Objection time periods

30 day objection period for EAs 30 day objection period for EISs

Objection response period 30 days for Reviewing Officer to respond

No extension of time allowed

Subpart C

Forest Supervisor and District Ranger Decisions◦Continue to use a review team

For both EAs/EISs and CE/DMs◦Forest Supervisor’s role as AROs will likely be

diminished

Region 6 Review Process

Forest Supervisor and District Ranger Decisions◦Emphasis on meeting initial review time periods◦Be prepared to get your Forest Sup or the Deputy RF

up to speed quickly on your project◦Be prepared for IDT/Responsible Official to dialogue

with RO staff and Administrative Review Team

Region 6 Review Process

Questions & Answers