36 CFR 218 revised 04082013 short version

Report
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

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 nonHFRA 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

Subpart A
◦ Applies to both HFRA and non-HFRA projects. Key
provisions include:

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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 - allows for one level of review
Different!
◦ 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
◦ Objectors
Different!
 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
◦ Objections – giving notice of objection
Different!
Different!
 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
◦ Objections
Different!
Different!
 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
◦ Objections
 Resolution of objections
Different!
 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
◦ 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
Different!
 No legal notice of decision required
 Must inform public of decision
 5 day wait period if project was subject to objection

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))

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

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

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))
Scoping
Completed3?
36 CFR 218
Parts A&B
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?
36 CFR 215
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
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:



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
Emergency situations
Legal notice and comment process
Notification of opportunity to comment
Commenting on proposed projects
Objection time periods

Subpart B
◦ Applies only to Non-HFRA Projects
◦ Emergency Situations
Different!
 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
◦ Describes the notice and comment process
 Legal notice of opportunity to comment
Different!
 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
 Objection time periods
 45 day objection period for EAs
 45 day objection period for EISs
 Objection response period
Different!
 45 days for Reviewing Officer to respond
 Discretion to extend for 30 days

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

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

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
Questions & Answers

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