36 CFR 218a

Federal Register / Vol. 69, No. 6 / Friday, January 9, 2004 / Rules and Regulations
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C.
Chapter 701; 50 U.S.C. 191, 195; 33 CFR
1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L.
107–295, 116 Stat. 2064; Department of
Homeland Security Delegation No. 0170.1

DEPARTMENT OF AGRICULTURE

■ 2. Add § 165.T09–289 to read as
follows:

RIN 0596–AC15

§ 165.T09–289 Security Zone; Renaissance
Center and Cobo Hall, North American
International Auto Show, Detroit River,
Detroit, MI.

(a) Location. The following is a
temporary security zone: All waters and
adjacent shoreline encompassed by a
line commencing on the shore-side near
Cobo Hall, at 42°19′26.6″ N,
083°03′06.6″ W; then extending offshore
at 160°T to the Third St. junction buoy
at 42°19′24.2″ N, 83°03′4.7″ W; then
northeast at 073°T to the Griswold St.
junction buoy at 42°19′31″ N,
83°02′34.1″ W; then northeast at 071°T
to 42°19′40″ N, 083°02′00″ W; then north
at 000°T to a point on land at
42°19′46.3″ N, 083°02′00″ W (near
Atwater Customs station); then
southeast following the shoreline back
to the point of origin. These coordinates
are based upon North American Datum
1983 (NAD 83).
(b) Enforcement period. This security
zone will be enforced from 12 p.m.
(noon) January 9, 2004, until 8 p.m. on
January 19, 2004.
(c) Regulations. (1) In accordance with
§ 165.33, entry into this zone is
prohibited unless authorized by the
Coast Guard Captain of the Port Detroit.
(2) Persons desiring to transit through
security zone must contact the Captain
of the Port at telephone number (313)
568–9580/313–568–9524, or on VHF
channel 16 to seek permission prior to
transiting the area. If permission is
granted, all persons and vessels shall
comply with the instructions of the
Captain of the Port or his or her
designated representative.
Dated: December 31, 2003.
P.G. Gerrity,
Commander, U.S. Coast Guard, Captain of
the Port Detroit.
[FR Doc. 04–385 Filed 1–8–04; 8:45 am]
BILLING CODE 4910–15–U

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Forest Service
36 CFR Parts 215 and 218

Predecisional Administrative Review
Process for Hazardous Fuel Reduction
Projects Authorized Under the Healthy
Forests Restoration Act of 2003
Forest Service, USDA.
ACTION: Interim final rule; request for
comments.
AGENCY:

SUMMARY: This interim final rule
establishes the sole process by which
the public may seek administrative
review and file objections to proposed
hazardous fuel reduction projects
authorized by the Healthy Forests
Restoration Act of 2003 (HFRA), Public
Law 108–148. Section 105 of the act
directs the Secretary of Agriculture to
promulgate, within 30 days of HFRA’s
enactment, interim final regulations to
establish a predecisional administrative
review process for hazardous fuel
reduction projects authorized under the
act. The Forest Service invites written
comments on this interim final rule. As
provided by HFRA, this interim final
rule is effective upon publication in the
Federal Register and will be in effect
until the Secretary adopts a final rule.
DATES: This interim final rule is
effective January 9, 2004. Comments on
this interim final rule must be received
in writing by April 8, 2004.
ADDRESSES: Send written comments to
USDA, Forest Service, Healthy Forests
Restoration Act Objections, Content
Analysis Team, PO Box 22777, Salt Lake
City, UT 84122; by electronic mail to
[email protected]; or by fax to
(801) 517–1014; or by the electronic
process available at Federal
eRulemaking portal at http://
www.regulations.gov. If comments are
sent by electronic mail or by fax, the
public is requested not to send
duplicate written comments via regular
mail. Please confine written comments
to issues pertinent to the interim final
rule; explain the reasons for any
recommended changes; and, where
possible, reference the specific section
or paragraph being addressed.
All timely and properly submitted
comments, including names and
addresses when provided, are placed in
the record and are available for public
inspection and copying. The public may
inspect comments received on this
interim final rule at the Content
Analysis Team Service Center offices in
Salt Lake City, Utah between the hours

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of 8 a.m. to 4:30 p.m. on business days.
Those wishing to inspect comments
should call ahead (801) 517–1020 to
facilitate an appointment and entrance
to the building.
FOR FURTHER INFORMATION CONTACT:
Steve Segovia, Assistant Director,
Appeals and Litigation at (202) 205–
1066.

On
December 3, 2003, President Bush
signed into law the Healthy Forests
Restoration Act of 2003 (HFRA) to
reduce the threat of destructive
wildfires while upholding
environmental standards and
encouraging early public input during
planning processes. The legislation
helps further the President’s Healthy
Forests Initiative pledge to care for
America’s forests and rangelands,
reduce the risk of catastrophic fire to
communities, help save the lives of
firefighters and citizens, and protect
threatened and endangered species.
One of the provisions of the act, (sec.
105) requires that the Secretary of
Agriculture (Secretary) issue an interim
final rule within 30 days of enactment
to establish a predecisional
administrative review process for
hazardous fuel reduction projects
authorized by the HFRA. This interim
final satisfies this requirement to
establish a predecisional administrative
review process. Another provision of
the act required the Secretary to provide
a reasonable time for public comment.
The Secretary is providing a 90-day
comment period on the interim final
rule. This 90-day provision satisfies the
reasonable time requirement in the act.
Prior to passage of the HFRA, public
notice and comment for hazardous fuel
reduction project proposals, and
procedures for appeal of decisions
implementing those projects, would
have been conducted according to the
procedures set out at 36 CFR part 215.
This interim final rule amends part 215
to exempt hazardous fuel reduction
projects authorized by the HFRA from
the notice, comment, and appeal
procedures set out at part 215 and
establishes separate review and
objection procedures specifically for
hazardous fuel reduction projects,
pursuant to HFRA at the new part 218,
subpart A.

SUPPLEMENTARY INFORMATION:

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Section-by-Section Description of
Interim Final Rule
Part 215—Notice, Comment, and
Appeal Procedures for National Forest
System Projects and Activities
Section 215.3—Proposed Actions
Subject to Legal Notice and Opportunity
To Comment
Paragraphs (a) and (b) are amended to
clarify that the notice and comment
provisions of part 215 do not apply to
proposed hazardous fuel reduction
projects conducted pursuant to the
HFRA.
Section 215.4—Actions Not Subject to
Legal Notice and Opportunity To
Comment
Paragraph (f) is added to identify that
proposed hazardous fuel reduction
projects authorized by the HFRA are not
subject to the notice and comment
provisions of part 215.
Section 215.12—Decisions and Actions
Not Subject to Appeal
Paragraph (i) is added to clarify that
proposed hazardous fuel reduction
projects conducted under the provisions
of the HFRA are not subject to appeal
procedures in part 215 and that they are
subject to the administrative review
process found in part 218, subpart A.
Part 218—Predecisional Administrative
Review
Subpart A—Predecisional
Administrative Review for Proposed
Hazardous Fuel Reduction Projects
Authorized by the Healthy Forests
Restoration Act of 2003
Section 218.1—Purpose and Scope
This section establishes a
predecisional administrative review
(hereinafter ‘‘objection’’) process for
those proposed hazardous fuel
reduction projects authorized by the
HFRA.
Section 218.2—Definitions
This section defines some of the
commonly used terms and phrases in
the interim final rule.
Section 218.3—Authorized Hazardous
Fuel Reduction Projects Subject to the
Objection Process
This section describes projects subject
to the objection process.
Section 218.4—Legal Notice of
Objection Process for Proposed
Authorized Hazardous Fuel Reduction
Projects
This section describes the method to
be used when giving notice that an
environmental assessment or

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environmental impact statement for a
proposed authorized hazardous fuel
reduction project is available for
administrative review and how the
proposed authorized hazardous fuel
reduction project must be described in
this notice.
Paragraph (a) requires that the
Responsible Official must mail the final
environmental impact statement or the
environmental assessment to those who
have submitted specific written
comments related to the proposed
authorized hazardous fuel reduction
project during the opportunity for
public comment provided during
preparation of the environmental
assessment or environmental impact
statement.
Paragraph (b) states that the
Responsible Official must announce
through notice in a previously
designated newspaper of record when
an environmental assessment or
environmental impact statement is
available for administrative review,
except for proposals of the Chief where
Federal Register publication is provided
in addition to publication in the
newspaper of record for the unit where
the proposed hazardous fuel reduction
project is undertaken. The legal notice
begins the 30-day objection-filing period
for a proposed authorized hazardous
fuel reduction project.
Paragraph (b) further outlines the
format and content of the legal notice,
including a statement that incorporation
of documents by reference is not
allowed. This provision ensures that the
contents of an objection, including all
attachments, are readily available to the
Reviewing Officer for timely completion
of the objection process. Similarly,
objectors cannot meet the requirements
of this process by attempting to
incorporate substantive materials and
arguments from other objectors. The
Federal courts have taken a similar view
of such procedural maneuvers; see
Swanson v. U.S. Forest Service, 87 F.3d
339 (9th Cir. 1996).
Paragraph (c) requires annual
publication in the Federal Register of
the newspapers to be used for giving
legal notice of proposed authorized
hazardous fuel reduction projects
subject to this rule. The annual
publication of the newspapers to be
used for giving legal notice of proposed
authorized hazardous fuel reduction
projects subject to this rule may occur
in tandem with the annual publication
requirement found in part 215.
Section 218.5—Reviewing Officer
This section provides the Reviewing
Officer with the authority to make all
procedural determinations not

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specifically explained in this subpart,
including those procedures necessary to
ensure compatibility, to the extent
practicable, with the administrative
review processes of other Federal
agencies when undertaking a joint
proposed authorized hazardous fuel
reduction project. The section also
provides that such procedural
determinations are not subject to further
review.
Section 218.6—Who May File an
Objection
This section of the rule identifies the
qualifying requirements for who may
file an objection under this subpart.
Paragraph (a) provides that those
individuals and organizations who have
submitted specific written comments
related to the proposed authorized
hazardous fuel reduction project during
the opportunity for public comment
provided during preparation of an
environmental assessment or
environmental impact statement for the
proposed authorized hazardous fuel
reduction project, as characterized in
section 104(g) of the HFRA are eligible
to file an objection. Paragraph (a) further
states that for a proposed authorized
hazardous fuel reduction project
described in an environmental impact
statement, the requirements of section
104(g) would be satisfied during the
formal comment process for draft
environmental impact statements set
forth in 40 CFR 1506.10. For proposed
authorized hazardous fuel reduction
projects described in an environmental
assessment, the requirements at section
104(g) will be satisfied by submission of
specific written comment related to the
proposed authorized hazardous fuel
reduction project during scoping and
other public involvement opportunities
as environmental assessments are not
circulated for public comment in draft
form.
Paragraph (b) states that when an
organization submits comments,
eligibility is conferred on that
organization only, not on individual
members of that organization. The
Department believes an organization is
its own entity for purposes of
submitting comments and that it is
appropriate to accord an organization
eligibility to file objections as an
organization when it submits comments.
However, the Department does not
believe it is appropriate to allow
individual members in that organization
eligibility to file individual objections
by virtue of membership in an
organization that submitted comments.
Nothing in this section prohibits an
individual member of an organization

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from submitting comments on his or her
own behalf.
Paragraph (c) clarifies that if an
objection is submitted on behalf of a
number of named individuals or
organizations, each individual or
organization listed must meet the
eligibility requirement of having
submitted comments during scoping or
the other opportunity to comment as
prescribed by HFRA.
Paragraph (d) states that Federal
agencies are not allowed to file an
objection. Other avenues are available to
Federal agencies for working through
concerns regarding a proposed
authorized hazardous fuel reduction
project. It is expected that the various
Federal agencies will work
cooperatively during project
development.
Paragraph (e) allows Federal
employees to file objections as
individuals in a manner consistent with
Federal conflict of interest
requirements.
Section 218.7—Filing an Objection
This section provides information on
how to file an objection.
Paragraph (a) provides for an
objection to be filed with the Reviewing
Officer in writing.
Paragraph (b) describes the objector’s
responsibility.
Paragraph (c) provides that
incorporation of documents by reference
shall not be allowed. The reasons for not
permitting documents by reference are
addressed in the discussion in
preceding section 218.4(b).
Paragraph (d) provides a detailed list
of information that must be included in
an objection. The list is comparable to
the Department’s requirements in
appeal regulations for land and resource
management plans (part 217) and
projects implementing land and
resource management plans (part 215).
Section 218.8—Objections Set Aside
From Review
This section sets out the conditions
under which objections shall not be
reviewed.
Paragraph (a) specifies when the
Reviewing Officer must set aside an
objection without review or response on
the concerns raised, including when an
objection is not filed within the
objection period; when the proposed
project is not subject to the provisions
of the HFRA and, therefore, is not
subject to the objections process; when
the objector did not submit specific
written comments related to the
proposed authorized hazardous fuel
reduction project during the
opportunity for public comment

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provided during preparation of an
environmental assessment or
environmental impact statement for the
proposed authorized hazardous fuel
reduction project; and when there is
insufficient information to review and
respond.
Paragraph (b) states that when an
objection is set aside and not processed,
the Reviewing Officer shall give written
notice to the objector and Responsible
Official.
Section 218.9—Objection Time Periods
and Process
This section describes the various
time periods involved in the objection
process. One of the purposes of the
HFRA is to reduce the threat of
destructive wildfires while upholding
environmental standards and
encouraging early public input during
review and planning processes. The
time periods established in this section
are predicated on that statutory purpose.
Paragraph (a) specifies that the
objection-filing period is 30 days
following publication of the legal notice.
Paragraph (b) describes how time
periods are computed.
Paragraph (c) describes how evidence
of timely filing is determined.
Paragraph (d) states that time
extensions are not permitted.
Paragraph (e) states that a written
response to the objection shall be issued
within 30 days following the end of the
objection-filing period.
Section 218.10—Resolution of
Objections
This section describes the objection
resolution process.
Paragraph (a) allows for either the
Reviewing Officer or the objector to
request a meeting to discuss the
objection and attempt resolution.
Paragraph (b) provides for a written
response to the objection. The
Reviewing Officer may issue a single
response to multiple objections of the
same proposed authorized hazardous
fuel reduction project. Paragraph (b)
also states that there is no higher level
review of the Reviewing Officer’s
written response to the objection.
Section 218.11—Timing of Authorized
Hazardous Fuel Reduction Project
Decision
This section describes when a
Responsible Official may make a final
decision regarding a proposed
authorized hazardous fuel reduction
project pursuant to the HFRA.
Paragraph (a) allows decisions to be
made on proposed authorized
hazardous fuel reduction projects when
the objection period has ended and

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1531

when responses have been made to all
objections.
To provide reasonable assurance that
objections are received before
decisionmaking, paragraph (b) states
that a decision can be made on a
proposed authorized hazardous fuel
reduction project on the 5th business
day following the close of the filing
period when no timely objections are
filed. For all environmental impact
statements, there must be a minimum of
30 days between notice of the final
environmental impact statement and
issuance of a Record of Decision.
Section 218.12—Secretary’s Authority
Paragraph (a) details the Secretary’s
authority.
Paragraph (b) exempts authorized
hazardous fuel reduction projects
proposed by the Secretary or Under
Secretary of Agriculture from the
provisions of this rule. Nothing in the
HFRA alters the Secretary’s longestablished authority to make decisions
affecting the Forest Service. The
Department’s position has always been
that Secretarial decisions are not subject
to an administrative review or appeal
process under any of the Forest
Service’s administrative review systems
and there is no indication that Congress
intended to make such a change through
the HFRA.
Section 218.13—Judicial Proceedings
Section 218.13 reflects the
Department’s interpretation and
implementation of section 105 of the
HRFA. Statutory and judicial
exhaustion requirements ensure that an
agency is able to develop full factual
records, to apply technical and
managerial expertise to identified
problems, to exercise its judgment and
discretion, and to correct its own
mistakes. Exhaustion requirements are
credited with promoting accuracy,
efficiency, public participation, agency
autonomy, and judicial economy.
Generally, statutory exhaustion
requirements are jurisdictional and
cannot be waived by courts. The HFRA
does permit plaintiffs to undertake the
burden of demonstrating that a ‘‘futility
or inadequacy’’ exception should be
invoked as to a specific plaintiff or
claim. The Department understands
these provisions are to be read together,
narrowly construed, and invoked only
in rare instances such as where
information becomes available only
after the conclusion of the
administrative process.
Congress stated that National
Environmental Policy Act (NEPA)
documents are to be in complete or final
form when made available for objection.

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The objection process is, therefore, not
a second comment period on a draft
document, but rather a final opportunity
to ensure full understanding of public
concerns shortly preceding a decision.
Congress’s view on the purpose or
intent for the objection process likewise
narrows the operation of the futility
exemption to those situations where
information, which dramatically
changes the picture with regard to
environmental effects, or the need for
the project, comes to light after the
NEPA document has been completed.
A contrary reading would be
inconsistent with Congress’s
expectation that the exception
provisions are not applicable to
information which has not been brought
to the attention of the agency. The
objection process protects against the
possibility of a ‘‘futile’’ appeal due to
delay because final decisions on
authorized hazardous fuel reduction
projects cannot be issued prior to
conclusion of the objection process and
any issue relevant to the proposed
authorized hazardous fuel reduction
project can be assessed during the
objection process. Similarly,
predecisional review of each proposed
authorized hazardous fuel reduction
project avoids the criticism sometimes
leveled against postdecisional appeals
that reviewers are unfairly disposed to
a particular or predetermined outcome.
Instances of futility or inadequacy
should be rare indeed as the
administrative review is conducted
through a process Congress created
specifically for this class of actions and
occurs prior to the agency’s final
decision. Moreover, the participatory
requirements for these high-priority
projects are predicated on Congress’s
determination, expressed through the
statutory scheme, that predecisional
collaboration is vital to avoiding
potential disputes and that the land
managers are in the optimal position to
identify and correct any errors and to
fine-tune the design of proposed
authorized hazardous fuel reduction
projects if they are made aware of
concerns before final decisions are
made. Sweeping exceptions to the
participatory requirements are at odds
with Congress’s intent.
Section 218.14—Information Collection
Requirements
This section explains that the rule
contains information collection
requirements as defined in 5 CFR part
1320 by specifying the information that
objectors must supply in an objection.
The Office of Management and Budget
(OMB) Control Number for this

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information collection will be included
in the final rule.
Section 218.15—Applicability and
Effective Date
This section sets out the effective date
of this interim final rule and provides
that all proposed hazardous fuel
reduction projects subject to the
provisions of the HFRA, for which
scoping begins on or after the effective
date of this interim final rule, are
subject to its provisions.
Good Cause Statement
The Healthy Forests Restoration Act
of 2003 (HFRA), signed by President
Bush on December 3, 2003, directs that
within 30 days of enactment the
Secretary of Agriculture promulgate a
special administrative review process to
serve as the sole means by which the
public can seek administrative review
regarding proposed authorized
hazardous fuel reduction projects. The
HFRA directs that the interim final rule
shall be effective upon publication in
the Federal Register. Circulation of the
interim final rule for public comment
prior to the effective date is impractical
given the statutory 30-day deadline;
furthermore, a 90-day comment period
on the interim final rule is provided,
and comments will be considered for
the subsequent development of the final
rule.
Regulatory Certifications
Regulatory Impact
This interim final rule has been
reviewed under USDA procedures and
Executive Order 12866 on Regulatory
Planning and Review. It has been
determined that this is not a significant
rule. This interim final rule will not
have an annual effect of $100 million or
more on the economy nor adversely
affect productivity, competition, jobs,
the environment, public health or
safety, nor State or local governments.
This interim final rule will not interfere
with an action taken or planned by
another agency nor raise new legal or
policy issues. Finally, this action will
not alter the budgetary impact of
entitlements, grants, user fees, or loan
programs, or the rights and obligations
of recipients of such programs.
Moreover, this interim final rule has
been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.), and it has been determined that
this action will not have a significant
economic impact on a substantial
number of small entities as defined by
that act. Therefore, a regulatory
flexibility analysis is not required for
this interim final rule.

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Environmental Impacts
This interim final rule establishes a
predecisional administrative review
process for authorized hazardous fuel
reduction projects on National Forest
System lands pursuant to section 105 of
the Healthy Forests Restoration Act of
2003. Section 31.1b of Forest Service
Handbook 1909.15 (57 FR 43168;
September 18, 1992) excludes from
documentation in an environmental
assessment or impact statement ‘‘rules,
regulations, or policies to establish
Service-wide administrative procedures,
program processes, or instruction.’’ This
interim final rule clearly falls within
this category of actions and no
extraordinary circumstances exist which
would require preparation of an
environmental assessment or an
environmental impact statement.
Energy Effects
This interim final rule has been
reviewed under Executive Order 13211
of May 18, 2001, ‘‘Actions Concerning
Regulations That Significantly Affect
Energy Supply, Distribution, or Use.’’ It
has been determined that this proposed
rule does not constitute a significant
energy action as defined in the
Executive order.
Controlling Paperwork Burdens on the
Public
This interim final rule represents a
new information requirement as defined
in 5 CFR Part 1320, Controlling
Paperwork Burdens on the Public. In
accordance with those rules and the
Paperwork Reduction Act of 1995, as
amended (44 U.S.C. 3501, et seq.), the
Forest Service has requested emergency
approval from the Office of Management
and Budget (OMB) for this new
information collection. The information
to be collected from those who choose
to participate in the predecisional
administrative review process for
hazardous fuel reduction projects
authorized under the Healthy Forests
Restoration Act of 2003 (HFRA) is the
minimum needed for the Reviewing
Officer to make an informed decision on
an objection filed under the HFRA.
Description of Information Collection
Title: Predecisional Administrative
Review Process for Hazardous Fuel
Reduction Projects Authorized Under
the Healthy Forests Restoration Act of
2003.
OMB Number: 0596–0172.
Expiration Date of Approval: June 30,
2004.
Type of Request: The following
collection requirements are new and
have not previously received approval

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Federal Register / Vol. 69, No. 6 / Friday, January 9, 2004 / Rules and Regulations
by the Office of Management and
Budget.
Abstract: The information collected is
needed for a citizen or organization to
explain the nature of the objection being
made to a proposed authorized
hazardous fuel reduction project
undertaken under the authority of the
Healthy Forests Restoration Act of 2003,
and the reason(s) why the individual or
organization objects. Specifically, an
objector must provide:
1. A name, mailing address, and if
possible, telephone number;
2. Signature or other verification of
authorship upon request;
3. The name of the proposed
authorized hazardous fuel reduction
project, the name and title of the
Responsible Official, the National
Forest(s) and/or Ranger District(s) on
which the proposed authorized
hazardous fuel reduction project will be
implemented; and
4. Any specific changes that the
objector seeks and the rationale for
those changes.
Estimate of Burden: The public
reporting burden to provide information
when filing an objection to a proposed
authorized hazardous fuel reduction
project is estimated to average 8 hours
per response.
Respondents: Individuals, businesses,
not-for-profit institutions, State, local or
Tribal Government.
Estimated Number of Respondents:
121.
Estimated Number of Responses per
Respondent: 1 response per year.
Estimated Total Annual Burden on
Respondents: 968 hours.
Comments are Invited on: (a) Whether
the collection of information is
necessary for the proper performance of
the functions of the agency, including
whether the information will have
practical utility; (b) the accuracy of this
agency’s estimate of the burden of the
collection of information, including the
validity of the methodology and
assumptions used; (c) ways to enhance
the quality, utility, and clarity of the
information to be collected; and (d)
ways to minimize the burden of the
collection of information on
respondents, including the use of
automated collection techniques or
other forms of information technology.
Use of Comments: All comments
received in response to this information
collection will be summarized and
included in the request for final OMB
approval. All comments, including
names and addresses when provided
will become a matter of public record.

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Federalism
The agency has considered this
interim final rule under the
requirements of Executive Order 13132,
Federalism, and Executive Order 12875,
Government Partnerships. The agency
has made a preliminary assessment that
the interim final rule conforms with the
federalism principles set out in these
Executive orders; would not impose any
compliance costs on the States; and
would not have substantial direct effects
on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government. Based on
comments received on this interim final
rule, the agency will consider if any
additional consultation will be needed
with State and local governments prior
to adopting a final rule.
Consultation and Coordination With
Indian Tribal Governments
This interim final rule does not have
tribal implications as defined in
Executive Order 13175, Consultation
and Coordination with Indian Tribal
Governments, and, therefore, advance
consultation with tribes is not required.
No Takings Implications
This interim final rule has been
analyzed in accordance with the
principles and criteria contained in
Executive Order 12630. It has been
determined that the interim final rule
does not pose the risk of a taking of
private property.
Civil Justice Reform
This interim final rule has been
reviewed under Executive Order 12988
on civil justice reform. After adoption of
this interim final rule, (1) all State and
local laws and regulations that conflict
with this interim final rule or that
impede its full implementation will be
preempted; (2) no retroactive effect will
be given to this interim final rule; and
(3) it will not require administrative
proceedings before parties may file suit
in court challenging its provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
1531–1538), which the President signed
into law on March 22, 1995, the agency
has assessed the effects of this interim
final rule on State, local, and tribal
governments and the private sector.
This interim final rule does not compel
the expenditure of $100 million or more
by any State, local, or tribal
governments or anyone in the private
sector. Therefore, a statement under
section 202 of the act is not required.

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1533

List of Subjects
36 CFR Part 215
Administrative practice and
procedure, National Forests.
36 CFR Part 218
Administrative practice and
procedure, National Forests.
■ Therefore, for the reasons set forth in
the preamble, amend part 215 and add
subpart A to part 218 of title 36 of the
Code of Federal Regulations to read as
follows:
PART 215—NOTICE, COMMENT, AND
APPEAL PROCEDURES FOR
NATIONAL FOREST SYSTEM
PROJECTS AND ACTIVITIES
1. Amend section 215.3 to revise
paragraphs (a) and (b) to read as follows:

■

§ 215.3 Proposed actions subject to legal
notice and opportunity to comment.

*

*
*
*
*
(a) Proposed projects and activities
implementing land and resource
management plans (§ 215.2) for which
an environmental assessment (EA) is
prepared, except hazardous fuel
reduction projects conducted under
provisions of the Healthy Forests
Restoration Act (HFRA), as set out at
part 218, subpart A of this title.
(b) Proposed projects and activities
described in a draft environmental
impact statement (DEIS) for which
notice and comment procedures are
governed by 40 CFR parts 1500 through
1508, except hazardous fuel reduction
projects conducted under provisions of
the HFRA, as set out at part 218, subpart
A, of this title.
*
*
*
*
*
■ 2. Amend section 215.4 to add
paragraph (f) to read as follows:
§ 215.4 Actions not subject to legal notice
and opportunity to comment.

*

*
*
*
*
(f) Hazardous fuel reduction projects
conducted under the provisions of
section 105 of the HFRA, except as
provided in part 218, subpart A, of this
title.
■ 3. Amend section 215.12 to add
paragraph (i) to read as follows:
§ 215.12 Decisions and actions not subject
to appeal.

*

*
*
*
*
(i) Hazardous fuel reduction projects
conducted under provisions of the
HFRA, as set out at part 218, subpart A,
of this title.
■ 4. Add part 218, subpart A, to read as
follows:

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Federal Register / Vol. 69, No. 6 / Friday, January 9, 2004 / Rules and Regulations

PART 218—PREDECISIONAL
ADMINISTRATIVE REVIEW
PROCESSES
Subpart A—Predecisional
Administrative Review Process for
Hazardous Fuel Reduction Projects
Authorized by the Healthy Forests
Restoration Act of 2003
Sec.
218.1 Purpose and scope.
218.2 Definitions.
218.3 Authorized hazardous fuel reduction
projects subject to the objection process.
218.4 Legal notice of objection process for
proposed authorized hazardous fuel
reduction projects.
218.5 Reviewing officer.
218.6 Who may file an objection.
218.7 Filing an objection.
218.8 Objections set aside from review.
218.9 Objection time periods and process.
218.10 Resolution of objections.
218.11 Timing of authorized hazardous fuel
reduction project decision.
218.12 Secretary’s authority.
218.13 Judicial proceedings.
218.14 Information collection requirements.
218.15 Applicability and effective date.
Subpart B [Reserved]
Authority: Pub. L. 108–148, 117 Stat 1887
(Healthy Forests Restoration Act of 2003).
§ 218.1

Purpose and scope.

This subpart establishes a
predecisional administrative review
(hereinafter referred to as ‘‘objection’’)
process for proposed authorized
hazardous fuel reduction projects as
defined in the Healthy Forests
Restoration Act of 2003 (HFRA). The
objection process is the sole means by
which administrative review of a
proposed authorized hazardous fuel
reduction project on National Forest
System land may be sought. This
subpart identifies who may file
objections to those proposed authorized
hazardous fuel reduction projects, the
responsibilities of the participants in an
objection, and the procedures that apply
for review of the objection.
§ 218.2

Definitions.

Address—An individual’s or
organization’s current physical mailing
address. An e-mail address is not
sufficient.
Authorized hazardous fuel reduction
project—A hazardous fuel reduction
project authorized by the HFRA.
Comments—Specific written
comments related to a proposed
authorized hazardous fuel reduction
project pursuant to the HFRA.
Decision Notice (DN)—A concise
written record of a Responsible
Official’s decision based on an
environmental assessment and a finding
of no significant impact (FONSI) (40
CFR 1508.13; FSH 1909.15, Chapter 40).

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Environmental Assessment (EA)—A
public document that provides
sufficient evidence and analysis for
determining whether to prepare an
environmental impact statement (EIS) or
a finding of no significant impact, aids
an agency’s compliance with the
National Environmental Policy Act
(NEPA) when no EIS is necessary, and
facilitates preparation of a statement
when one is necessary (40 CFR 1508.9;
FSH 1909.15, Chapter 40).
Environmental Impact Statement
(EIS)—A detailed written statement as
required by section 102(2)(C) of the
National Environmental Policy Act of
1969 (40 CFR 1508.11; FSH 1909.15,
Chapter 20).
Forest Service line officer—A Forest
Service official who serves in a direct
line of command from the Chief and
who has the delegated authority to make
and execute decisions approving
hazardous fuel reduction projects
subject to this subpart.
Lead objector—For objections
submitted with multiple individuals
and/or organizations listed, the
individual or organization identified to
represent all other objectors for the
purposes of communication, written or
otherwise, regarding the objection.
Name—The first and last name of an
individual or the name of an
organization. An electronic username is
insufficient for identification of an
individual or organization.
National Forest System land—All
lands, water, or interests therein
administered by the Forest Service
(§ 251.51).
Newspaper(s) of record—Those
principal newspapers of general
circulation annually identified in a list
and published in the Federal Register
by each Regional Forester to be used for
publishing notices of projects and
activities implementing land and
resource management plans.
Objection—The written document
filed with a Reviewing Officer by an
individual or organization seeking
predecisional administrative review of a
proposed authorized hazardous fuel
reduction project as defined in the
Healthy Forests Restoration Act of 2003.
Objection period—The 30-calendarday period following publication of the
legal notice in the newspaper of record
of an environmental assessment or final
environmental impact statement for a
proposed authorized hazardous fuel
reduction project during which an
objection may be filed with the
Reviewing Officer.
Objection process—Those procedures
established for predecisional
administrative review of proposed
authorized hazardous fuel reduction

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projects subject to the Healthy Forests
Restoration Act of 2003.
Objector—An individual or
organization filing an objection who
submitted comments specific to the
proposed authorized hazardous fuel
reduction project during scoping or
other opportunity for public comment
as described in the Healthy Forests
Restoration Act of 2003. The use of the
term ‘‘objector’’ applies to all persons
that meet eligibility requirements
associated with the filed objection.
Record of Decision (ROD)—A
document signed by a Responsible
Official recording a decision that was
preceded by preparation of an
environmental impact statement (40
CFR 1505.2; FSH 1909.15, Chapter 20).
Responsible Official—The Forest
Service employee who has the delegated
authority to make and implement a
decision approving proposed authorized
hazardous fuel reduction projects
subject to this subpart.
Reviewing Officer—The USDA or
Forest Service official having the
delegated authority and responsibility to
review an objection filed under this
subpart. The Reviewing Officer is the
next higher level supervisor of the
Responsible Official.
§ 218.3 Authorized hazardous fuel
reduction projects subject to the objection
process.

Only authorized hazardous fuel
reduction projects as defined by the
Healthy Forests Restoration Act of 2003,
section 101(2), occurring on National
Forest System lands that have been
analyzed in an environmental
assessment or environmental impact
statement are subject to this subpart.
Authorized hazardous fuel reduction
projects processed under the provisions
of the HFRA are not subject to the
notice, comment, and appeal provisions
set forth in part 215 of this chapter.
§ 218.4 Legal notice of objection process
for proposed authorized hazardous fuel
reduction projects.

(a) The Responsible Official shall
promptly mail the final environmental
impact statement (FEIS) or the
environmental assessment (EA) to those
who have previously requested to be
included on the proposed authorized
hazardous fuel reduction project
mailing list or are known to have
submitted specific written comments
related to the proposed authorized
hazardous fuel reduction project during
the opportunity for public comment
provided during preparation of the
environmental assessment or
environmental impact statement.
(b) Upon completion and mailing of
the FEIS or EA, legal notice of the

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Federal Register / Vol. 69, No. 6 / Friday, January 9, 2004 / Rules and Regulations
opportunity to object to a proposed
authorized hazardous fuel reduction
project shall be published in the
applicable newspaper of record
identified in paragraph (c) of this
section for each National Forest System
unit. When the Chief is the Responsible
Official, notice shall also be published
in the Federal Register. The legal notice
shall:
(1) Include the name of the proposed
authorized hazardous fuel reduction
project and a concise description of the
preferred alternative, name and title of
the Responsible Official, name of the
Forest and/or District on which the
proposed authorized hazardous fuel
reduction project will occur,
instructions for obtaining a copy of the
FEIS or EA, and instructions on how to
obtain additional information on the
proposed authorized hazardous fuel
reduction project.
(2) State that the proposed authorized
hazardous fuel reduction project is
subject to the objection process
pursuant to 36 CFR part 218, subpart A,
and include the following:
(i) Name and address of the
Reviewing Officer with whom an
objection is to be filed. The notice shall
specify a street, postal, fax, and e-mail
address, the acceptable format(s) for
objections filed electronically, and the
Reviewing Officer’s office business
hours for those filing hand-delivered
objections.
(ii) A statement that objections will be
accepted only from those who have
previously submitted written comments
specific to the proposed authorized
hazardous fuel reduction project during
scoping or other opportunity for public
comment (§ 218.6(a)).
(iii) A statement that the publication
date of the legal notice in the newspaper
of record is the exclusive means for
calculating the time to file an objection
(§ 218.9(a)) and that those wishing to
object should not rely upon dates or
timeframe information provided by any
other source. A specific date shall not be
included in the legal notice.
(iv) A statement that an objection,
including attachments, must be filed
(regular mail, fax, e-mail, hand-delivery,
express delivery, or messenger service)
with the appropriate Reviewing Officer
(§ 218.7) within 30 days of the date of
publication of the legal notice for the
objection process. Incorporation of
documents by reference shall not be
allowed.
(v) A statement describing the
minimum content requirements of an
objection (§ 218.7(b)–(c)).
(vi) A statement that the proposed
authorized hazardous fuel reduction
project is not subject to the notice,

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comment, and appeal procedures found
at part 215 of this chapter (§ 218.3).
(c) Publication. Through notice
published annually in the Federal
Register, each Regional Forester shall
advise the public of the newspaper(s) of
record utilized for publishing legal
notice required by this subpart.
§ 218.5

Reviewing officer.

The Reviewing Officer determines
procedures to be used for processing
objections when the procedures are not
specifically described in this subpart,
including such procedures as needed to
be compatible to the extent practicable,
with the administrative review
processes of other Federal agencies, for
authorized hazardous fuel reduction
projects proposed jointly with other
agencies. Such determinations are not
subject to further administrative review.
§ 218.6

Who may file an objection.

(a) Individuals and organizations who
have submitted specific written
comments related to the proposed
authorized hazardous fuel reduction
project during the opportunity for
public comment provided during
preparation of an environmental
assessment or environmental impact
statement for the proposed authorized
hazardous fuel reduction project as
characterized in section 104(g) of the
HFRA may file an objection. For
proposed authorized hazardous fuel
reduction projects described in a draft
environmental impact statement, such
opportunity for public comment will be
fulfilled by the comment procedures set
forth in 40 CFR 1506.10. For proposed
authorized hazardous fuel reduction
projects described in an environmental
assessment, such opportunity for public
comment will be fulfilled during
scoping or other public involvement
opportunities as environmental
assessments are not circulated for public
comment in draft form.
(b) Comments received from an
authorized representative(s) of an
organization are considered those of the
organization only. Individual members
of that organization do not meet
objection eligibility requirements solely
on the basis of membership in an
organization. A member or an
individual must submit comments
independently in order to be eligible to
file an objection in an individual
capacity.
(c) When an objection lists multiple
individuals or organizations, each
individual or organization shall meet
the requirements of paragraph (a) of this
section. Individuals or organizations
listed on an objection that do not meet
eligibility requirements shall not be

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1535

considered objectors. Objections from
individuals or organizations that do not
meet the requirements of paragraph (a)
shall not be accepted. This shall be
documented in the objection record.
(d) Federal agencies may not file
objections.
(e) Federal employees who otherwise
meet the requirements of this subpart
for filing objections in a non-official
capacity, shall comply with Federal
conflict of interest statutes at 18 U.S.C.
202–209 and with employee ethics
requirements at 5 CFR part 2635.
Specifically, employees shall not be on
official duty nor use Government
property or equipment in the
preparation or filing of an objection.
Further, employees shall not
incorporate information unavailable to
the public, such as Federal agency
documents that are exempt from
disclosure under the Freedom of
Information Act (5 U.S.C. 552 (b)).
§ 218.7

Filing an objection.

(a) Objections must be filed with the
Reviewing Officer in writing. All
objections shall be open to public
inspection during the objection process.
(b) It is the objector’s responsibility to
provide sufficient narrative description
of those aspects of the proposed
authorized hazardous fuel reduction
project addressed by the objection,
specific issues related to the proposed
authorized hazardous fuel reduction
project, and suggested remedies which
would resolve the objection.
(c) Incorporation of documents by
reference shall not be allowed.
(d) At a minimum, an objection must
include the following:
(1) Objector’s name and address
(§ 218.2), with a telephone number, if
available;
(2) Signature or other verification of
authorship upon request (a scanned
signature for electronic mail may be
filed with the objection);
(3) When multiple names are listed on
an objection, identification of the lead
objector (§ 218.2). Verification of the
identity of the lead objector shall be
provided upon request;
(4) The name of the proposed
authorized hazardous fuel reduction
project, the name and title of the
Responsible Official, and the name(s) of
the National Forest(s) and/or Ranger
District(s) on which the proposed
authorized hazardous fuel reduction
project will be implemented.
§ 218.8

Objections set aside from review.

(a) The Reviewing Officer shall set
aside and not review an objection when
one or more of the following applies:
(1) Objections are not filed in a timely
manner (§ 218.4(b)(2)(iv), § 218.9(c)).

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Federal Register / Vol. 69, No. 6 / Friday, January 9, 2004 / Rules and Regulations

(2) The proposed project is not subject
to the objection procedures of this
subpart (§ 218.3).
(3) The individual or organization did
not submit written comments during
scoping or other opportunity for public
comment (§ 218.6(a)).
(4) The objection does not provide
sufficient information as required by
§ 218.7(b) through (d) for the Reviewing
Officer to review.
(5) The objector withdraws the
objection.
(6) An objector’s identity is not
provided or cannot be determined from
the signature (written or electronically
scanned) and a reasonable means of
contact is not provided (§ 218.7(c)(1)).
(7) The objection is illegible for any
reason, including submissions in an
electronic format different from that
specified in the legal notice.
(b) The Reviewing Officer shall give
written notice to the objector and the
Responsible Official when an objection
is set aside from review and shall state
the reasons for not reviewing the
objection. If the objection is set aside
from review for reasons of illegibility or
lack of a means of contact, the reasons
shall be documented in the project
record.
§ 218.9 Objection time periods and
process.

(a) Time to file an objection. Written
objections, including any attachments,
must be filed with the Reviewing Officer
within 30 days following the
publication date of the legal notice of
the EA or FEIS in the newspaper of
record (§ 218.4(b)). It is the
responsibility of objectors to ensure that
their objection is received in a timely
manner.
(b) Computation of time periods. (1)
All time periods are computed using
calendar days, including Saturdays,
Sundays, and Federal holidays.
However, when the time period expires
on a Saturday, Sunday, or Federal
holiday, the time is extended to the end
of the next Federal working day as
stated in the legal notice or to the end
of the calendar day (11:59 p.m.) for
objections filed by electronic means
such as e-mail or facsimile machine.
(2) The day after publication of the
legal notice for this subpart of the EA or
FEIS in the newspaper of record
(§ 218.4(b)) is the first day of the
objection-filing period.
(3) The publication date of the legal
notice of the EA or FEIS in the
newspaper of record is the exclusive
means for calculating the time to file an
objection. Objectors may not rely on
dates or timeframe information
provided by any other source.

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(c) Evidence of timely filing.
Timeliness shall be determined by:
(1) The date of the postmark, e-mail,
fax, or other means of filing (for
example, express delivery service) of an
objection and any attachment;
(2) The time and date imprint at the
correct Reviewing Officer’s office on a
hand-delivered objection and any
attachments; or
(3) When an objection is
electronically mailed, the objector
should normally receive an automated
electronic acknowledgment from the
agency as confirmation of receipt. If the
objector does not receive an automated
acknowledgment of the receipt of the
objection, it is the objector’s
responsibility to ensure timely receipt
by other means.
(d) Extensions. Time extensions are
not permitted.
(e) Other timeframes. The Reviewing
Officer shall issue a written response to
the objector(s) concerning their
objection(s) within 30 days following
the end of the objection-filing period.
§ 218.10

Resolution of objections.

(a) Meetings. Prior to the issuance of
the Reviewing Officer’s written
response, either the Reviewing Officer
or the objector may request to meet to
discuss issues raised in the objection
and potential resolution. The Reviewing
Officer has the discretion to determine
whether or not adequate time remains in
the review period to make a meeting
with the objector practical. All meetings
are open to the public.
(b) Response to objections. (1) A
written response shall set forth the
reasons for the response, but need not
be a point-by-point review, and may
contain instructions to the Responsible
Official, if necessary. In cases involving
more than one objection to a proposed
authorized hazardous fuel reduction
project, the Reviewing Officer may
consolidate objections and issue one or
more responses.
(2) There shall be no further review
from any other Forest Service or USDA
official of the Reviewing Officer’s
written response to an objection.
§ 218.11 Timing of authorized hazardous
fuel reduction project decision.

(a) The Responsible Official may not
issue a Record of Decision (ROD) or
Decision Notice (DN) concerning an
authorized hazardous fuel reduction
project subject to the provisions of this
subpart until the Reviewing Officer has
responded to all pending objections.
(b) When no objection is filed within
the 30-day time period, the Reviewing
Officer shall notify the Responsible
Official, and approval of the authorized

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hazardous fuel reduction project in a
Record of Decision or Decision Notice
may occur on, but not before, the fifth
business day following the end of the
objection-filing period.
§ 218.12

Secretary’s authority.

(a) Nothing in this section shall
restrict the Secretary of Agriculture from
exercising any statutory authority
regarding the protection, management,
or administration of National Forest
System lands.
(b) Authorized hazardous fuel
reduction projects proposed by the
Secretary of Agriculture or the Under
Secretary, Natural Resources and
Environment are not subject to the
procedures set forth in this subpart. A
decision by the Secretary or Under
Secretary constitutes the final
administrative determination of the
Department of Agriculture.
§ 218.13

Judicial proceedings.

The objection process set forth in this
subpart fully implements Congress’
design for a predecisional
administrative review process for
proposed hazardous fuel reduction
projects authorized by the HFRA. These
procedures present a full and fair
opportunity for concerns to be raised
and considered on a project-by-project
basis. Individuals and groups must
structure their participation so as to
alert the local agency officials making
particular land management decisions
of their positions and contentions.
Further, any filing for Federal judicial
review of an authorized hazardous fuel
reduction project is premature and
inappropriate unless the plaintiff has
submitted specific written comments
relating to the proposed action during
scoping or other opportunity for public
comment as prescribed by the HFRA,
and the plaintiff has challenged the
authorized hazardous fuel reduction
project by exhausting the administrative
review process set out in this subpart.
Further, judicial review of hazardous
fuel reduction projects that are subject
to these procedures is strictly limited to
those issues raised by the plaintiff’s
submission during the objection
process, except in exceptional
circumstances such as where significant
new information bearing on a specific
claim only becomes available after
conclusion of the administrative review.
§ 218.14 Information collection
requirements.

The rules of this subpart specify the
information that objectors must provide
in an objection to a proposed authorized
hazardous fuel reduction project as
defined in the HFRA (§ 218.7). As such,

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Federal Register / Vol. 69, No. 6 / Friday, January 9, 2004 / Rules and Regulations
these rules contain information
collection requirements as defined in 5
CFR part 1320. These information
requirements are assigned OMB Control
Number 0596–0172.
§ 218.15

Applicability and effective date.

The provisions of this subpart are
effective as of January 9, 2004 and apply
to all proposed authorized hazardous
fuel reduction projects conducted under
the provisions of the HFRA for which
scoping begins on or after January 9,
2004.
Subpart B—[Reserved]
Dated: January 5, 2004.
David P. Tenny,
Deputy Under Secretary, Natural Resources
and Environment.
[FR Doc. 04–473 Filed 1–8–04; 8:45 am]
BILLING CODE 3410–11–P

ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[IA 200–1200; FRL–7608–3]

Approval and Promulgation of
Implementation Plans; State of Iowa;
Correction
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Correcting amendments.
SUMMARY: On October 8, 2003, EPA
published a direct final action
approving revisions to the Iowa State
Implementation Plan (SIP). In the
October 8, 2003, rule, EPA inadvertently
deleted a clarifying statement in the
Comments column for Polk County
Board of Health Rules and Regulations
Air Pollution Chapter V. We are making
a correction in this document.
DATES: This action is effective January 9,
2004.
FOR FURTHER INFORMATION CONTACT:
Heather Hamilton (913) 551–7039, or email her at [email protected].
SUPPLEMENTARY INFORMATION: EPA
published a SIP revision for Iowa for
Polk County Board of Health Rules and
Regulations Air Pollution Chapter V, on
June 13, 1995 (60 FR 31084). Section
52.820(c), Polk County, included a
statement that Article VIII and Article
XIII of the Polk County rules are not a
part of the SIP. This clarification was
inadvertently omitted in the prior rule.
Therefore, in this correction notice we
are reinserting this information into the
table.
Section 553 of the Administrative
Procedure Act, 5 U.S.C. 553(b)(B),

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provides that, when an agency for good
cause finds that notice and public
procedures are impracticable,
unnecessary, or contrary to the public
interest, the agency may issue a rule
without providing notice and an
opportunity for public comment. We
have determined that there is such good
cause for making today’s rule final
without prior proposal and opportunity
for comment because we are merely
reinserting an explanation which was
included in a previous action. Thus,
notice and public procedure are
unnecessary.
Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this action is
not a ‘‘significant regulatory action’’ and
therefore is not subject to review by the
Office of Management and Budget. For
this reason, this action is also not
subject to Executive Order 13211,
‘‘Actions Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001). This action merely corrects a
table consistent with a prior EPA action,
and imposes no additional
requirements. Accordingly, the
Administrator certifies that this rule
will not have a significant economic
impact on a substantial number of small
entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this
rule merely reinserts clarifying language
included in a previous action, it does
not contain any unfunded mandate or
significantly or uniquely affect small
governments, as described in the
Unfunded Mandates Reform Act of 1995
(Public Law 104–4). For the same
reason, this rule also does not
significantly or uniquely affect the
communities of tribal governments, as
specified by Executive Order 13084 (63
FR 27655, May 10, 1998). This rule will
not have substantial direct effects on the
states, on the relationship between the
national government and the states, or
on the distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999), for the reasons stated
above, and does not alter the
relationship or the distribution of power
and responsibilities established in the
Clean Air Act (CAA). This rule also is
not subject to Executive Order 13045 (62
FR 19885, April 23, 1997), because it is
not economically significant.
In reviewing SIP submissions, our
role is to approve state choices,
provided that they meet the criteria of
the CAA. In this context, in the absence
of a prior existing requirement for the
state to use voluntary consensus

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1537

standards (VCS), we have no authority
to disapprove a SIP submission for
failure to use VCS. It would thus be
inconsistent with applicable law for
EPA, when it reviews a SIP submission,
to use VCS in place of a SIP submission
that otherwise satisfies the provisions of
the CAA. Thus, the requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not
apply. As required by section 3 of
Executive Order 12988 (61 FR 4729,
February 7, 1996), in issuing this rule,
we have taken the necessary steps to
eliminate drafting errors and ambiguity,
minimize potential litigation, and
provide a clear legal standard for
affected conduct. EPA has complied
with Executive Order 12630 (53 FR
8859, March 15, 1988) by examining the
takings implications of the rule in
accordance with the ‘‘Attorney
General’s Supplemental Guidelines for
the Evaluation of Risk and Avoidance of
Unanticipated Takings’’ issued under
the Executive Order. This rule does not
impose an information collection
burden under the provisions of the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
The Congressional Review Act (CRA),
5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. Section 808 allows
the issuing agency to make a rule
effective sooner than otherwise
provided by the CRA if the agency
makes a good cause finding that notice
and public procedure is impracticable,
unnecessary or contrary to the public
interest. This determination must be
supported by a brief statement. As
stated previously, we made such a good
cause finding, including the reasons
therefore and established an effective
date of January 9, 2004. We will submit
a report containing this rule and other
required information to the United
States Senate, the United States House
of Representatives, and the Comptroller
General of the United States prior to
publication of the rule in the Federal
Register. This correction to the Iowa SIP
table is not a ‘‘major rule’’ as defined by
5 U.S.C. 804 et seq (2).
Dated: December 22, 2003.
James B. Gulliford,
Regional Administrator, Region 7.

Chapter I, title 40 of the Code of
Federal Regulations is amended as
follows:

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