36 CFR Part 218

US - CFR Title 36: Parks, Forests, and Public Property

36 CFR Part 218

PART 218—PROJECT-LEVEL PREDECISIONAL ADMINISTRATIVE REVIEW PROCESS

Chapter II—Forest Service, Department of Agriculture

§ 218.1 Purpose, applicability, and scope.

This part 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 (see § 218.16).

§ 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 § 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 (§ 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).

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.)

Mitigation. 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. See 16 U.S.C. 1609(a).

Objection. The written document filed with a responsible official by an individual or entity seeking administrative review of a proposed 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 (§ 218.6).

Proposal (or Project or Activities). See NEPA section 111(12), 42 U.S.C. 4336e(12).

Proposal record (or project 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 based on substantive issues raised to remedy an issue. Actions in response to the recommendation may include: 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; making factual corrections; or choosing not to take action.

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 (see NEPA section 111(6), 42 U.S.C. 4336e(6)).

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 project or activity. 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, decisions on how to proceed (that is, alternatives to be considered or analyzed or the alternative selected for implementation), or compliance with applicable laws, executive orders, and regulations.

§ 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 § 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, and the responsible official shall send a notification to interested parties using the Agency's current public notification tools (for example, email listservs or subscription services). The notice shall:

(1) Disclose that the project or activity is subject to the objection process (§ 218.4) unless at any point in the development and analysis process the project or activity is no longer subject to the objection process (§ 218.5 or § 218.15).

(2) Specify how comments must be submitted (for example, mailing address, email address, or web platform);

(3) State the title of the responsible official to whom the comments are to be addressed;

(4) Specify where the project or activity information for comments can be located electronically;

(5) State the date the notice of designated opportunity to comment 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 in paragraphs (e) through (h) of this section or include a link to the requirements as provided in this section.

(c) Time to file comments. The length of the designated opportunity for public comment is 15 days for a project or activity that is to be documented in an EA, or 30 days for a project or activity that is to be documented in an EIS, with no extension.

(1) Computation. The time periods for the designated opportunity for public comment and objection filing 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 until the end of the next Federal working day (11:59 p.m. in the receiving office's time zone for comments filed by electronic means, such as email).

(2) Start date. The date after a notice of a designated 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 and should take into account the complexity of the project or activity, the context of the substantive issues, and whether sufficient information is available for the public to make informed comments. 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 (NEPA, section 107(c); 42 U.S.C. 4336a(c)), 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; and

(3) Issues to be analyzed in detail. Discussion shall 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.

(e) Comment requirements. To be eligible to submit an objection, individuals and entities must provide the following in writing during a 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) or grassland(s) on which the project or activity will be implemented;

(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 comments in accordance with the notice, see paragraph (b)(5) of this section. 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. Comments 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 on printing, copying, or accessing text by screen reader devices.

(h) References and attachments. Only the following documents may be referenced or attached in comments. Other documents, attachments, or website links are not allowed and if submitted will not be reviewed by the responsible official.

(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 on 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 comments received by the responsible official shall be placed in the project record and shall become a matter of public record.

§ 218.4 Projects and activities subject to the project-level objection process.

The objection process applies to:

(a) Projects and activities implementing land management plans for which an EA is prepared, including projects authorized under the Healthy Forests Restoration Act (HFRA);

(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 paragraph (a) or (b) of this section, which are applicable only to that project or activity.

§ 218.5 Projects and activities not subject to the project-level objection process.

(a) The objection process does not apply when:

(1) No timely, specific written comments regarding the project or activity are received during a designated opportunity for public comment (see § 218.3);

(2) Any project or activity is categorically excluded from documentation in an EA or EIS;

(3) Any proposed land management plan, plan revision, and plan amendment is subject to the objection process set forth in 36 CFR part 219, subpart B;

(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 are issued in the Forest Service Manual and Handbooks (36 CFR part 216); or

(6) Authorizing the following:

(i) Emergency Situation Determinations or authorized emergency action under section 40807 of the Infrastructure and Investment Jobs Act of 2021 (16 U.S.C 6592c(d)) or determinations of emergency situations pursuant to any applicable emergency authorities; or

(ii) Emergency situations pursuant to § 218.14.

(b) For projects or components of projects that rely on other environmental analyses that have already been subject to the objection process of this part, the environmental analysis, previous findings, or decisions relied upon shall not be subject to objection review.

§ 218.6 Who may or may not file an objection.

(a) Individuals and entities, including federally recognized Indian Tribes and Alaska Native Corporations, that submitted timely specific written comments in response to a designated opportunity to comment as required in § 218.3 and in accordance with § 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 (§ 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.

(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 through 209 and with employee ethics requirements at 5 CFR part 2635.

§ 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 of the objection filing period will follow § 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 be available to the public at the time the draft FONSI or draft ROD is published. The EIS need not be filed with the Environmental Protection Agency, if required by the applicable NEPA regulations, until after the objection process concludes, but shall be filed prior to or in conjunction with issuance of the signed ROD. 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 (§ 218.8(b)(5)). Objectors may not rely on dates or timeframe information provided by any other source.

§ 218.8 Notice of opportunity to object.

(a) For projects and activities subject to the objection process (see § 218.4), the responsible official shall offer eligible individuals and entities (see § 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, and the responsible official shall send a notification to interested parties using the Agency's current public notification tools (for example, email listservs or subscription services).

(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, or web platform);

(2) State the 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 §§ 218.7(b) and 218.3(c)(1);

(5) Identify the objection filing period end date, as determined in accordance with §§ 218.7(d) and 218.3(c)(1); and

(6) Include the requirements for filing an objection as found in § 218.9 or include a link to § 218.9.

§ 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 format or provided on an Agency web-based platform and must not have permission restrictions on 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, or electronically through web-based platforms), the responsible official will accept and review only one submission at their discretion.

(b) Only the following documents may be referenced or attached in objections. Other documents, attachments, or website links are not allowed and if submitted will not be reviewed by the responsible official.

(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 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. Science or literature must be included as an attachment in portable document format (.pdf) that does not have permission restrictions on 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 a designated opportunity for public comment (see § 218.3(e)) unless the issue is based on:

(1) Modified alternatives, including the proposed action;

(2) Alternatives not previously analyzed;

(3) Supplemental analysis or analyses not previously disclosed; or

(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) or grassland(s) on which the project or activity will be implemented; and

(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) of this section; and

(ii) Clearly articulated recommendations for the responsible official to consider taking and/or clearly stated specific mitigation for the responsible official to consider (and should include statutory or regulatory authority for the mitigation specified) when finalizing the FONSI or ROD.

§ 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 a hard-copy 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 a hard-copy objection received before the close of the fifth business day after the objection filing period; or

§ 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 § 218.10);

(2) The project or activity is not subject to the objection process (see § 218.5);

(3) The individual or entity submitting the objection did not submit specific written comments regarding the project or activity during a designated opportunity for public comment in accordance with § 218.3(e) through (h), unless § 218.9(c) applies;

(4) The objection is only a restatement of previously submitted comments;

(5) The objection, as a whole, refers to the wrong project, activity, or administrative unit;

(6) The objection does not meet all the requirements of § 218.9;

(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 (notification of objection cancellation will be posted to the same location as the notice for opportunity to object); 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, activity, or administrative unit;

(3) Contains no statement that accurately ties the objection issue to previously submitted written comments nor a statement that the issue is based on one or more of the exceptions in § 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 in the final FONSI or ROD.

§ 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 an EA and draft FONSI, or 20 days for objections filed on an EIS and draft ROD. The Agency official one level above the responsible official has the discretion to extend the review of objections on an EIS an additional 15 days (for a total of 35 days) if the proposed action is of extraordinary complexity (NEPA, section 107(e)(1)(B); 42 U.S.C. 4336a(e)(1)(B)) and/or has received a high volume of objections. Following the required concurrence described in paragraph (d) of this section, the objection response will be posted on the same USDA website where the EA and draft FONSI, or the EIS and draft ROD, are published.

(1) Computation. The objection response period is 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, 15 calendar days from the start date for an EA and 20 calendar days from the start date for an EIS (unless extended to 35 days for an EIS (§ 218.12(b)).

(1) The objections, identified by submitting party, 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 § 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.

(4) Concurrence from an Agency official at an administrative level higher than the Forest/Grassland Supervisor where the project is occurring (see paragraph (d) of this section).

(d) Where the responsible official is a District Ranger or Forest/Grassland Supervisor, an Agency official at an administrative level higher than the Forest/Grassland Supervisor where the project is occurring must concur with the objection response before finalizing and posting on the USDA website. No concurrence is required where the responsible official is at an administrative level above the Forest/Grassland Supervisor.

§ 218.13 Timing of finding or decision.

(a) When eligible objections are reviewed. Upon publishing the response required in § 218.12, and unless withdrawing the project or activity, the responsible official shall promptly make any changes as communicated in the response (§ 218.12(b)) and, once complete, promptly publish the final FONSI or ROD and ensure the term “draft” is removed. Notification of the availability of the final 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. See § 218.7(c) with regards to timing of filing an EIS with the Environmental Protection Agency.

(b) When no objections are subject to review. If there are no eligible objectors or all objections filed are set aside from review (§ 218.11(a) and (b)), the responsible official shall, unless withdrawing the project or activity, publish a response noting that all objections were set aside from review, and 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 after 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 (§ 218.5), notification of the availability of the FONSI or ROD shall be provided in accordance with the applicable NEPA regulations.

§ 218.14 Emergency situations.

(a) Circumstances requiring immediate implementation. If the Chief or Associate Chief determines that an emergency situation exists as described in section 428 of the Consolidated Appropriations Act of 2012 (16 U.S.C. 6515 note) or successor legislation and associated regulations, and it is necessary to take action for the public interest, or to 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 project or activity, or portion thereof, shall not be subject to the predecisional objection process under this part, and implementation may proceed per the authorizing regulation.

(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. 6511 et seq.).

§ 218.15 Secretary and Under Secretary authority.

(a) Nothing in this section shall restrict the Secretary of Agriculture or the Under Secretary for Natural 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.

§ 218.16 Judicial proceedings.

Any filing for Federal judicial review of a decision covered by this part is premature and inappropriate unless the plaintiff has exhausted the objection process set forth in this part (see 7 U.S.C. 6912(e) and 16 U.S.C. 6515(c)).

§ 218.17 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.