S 2160 — Protect Collaboration for Healthier Forests Act

(5) Project.--The term ``project'' means a project described in subsection (c).

(6) Secretary.--The term ``Secretary'' means the Secretary of Agriculture, acting through the Chief of the Forest Service.

(b) Arbitration Pilot Program.-- (1) In general.--Not later than 2 years after the date of enactment of this Act, the Secretary shall issue a final rule to implement an arbitration pilot program, to be carried out in the States of Idaho, Montana, and Wyoming, as an alternative dispute resolution in lieu of judicial review for projects described in subsection (c).

(2) Limitation on number of projects.-- (A) In general.--The Secretary may not designate for arbitration under the pilot program more than 2 projects per calendar year.

(B) Exception.--If the Secretary designates a project for arbitration under the pilot program, and no participant initiates arbitration under subsection (e)(2), that project shall not count against the limitation on the number of projects under subparagraph (A).

(3) Applicable process.--Except as otherwise provided in this Act, the pilot program shall be carried out in accordance with subchapter IV of chapter 5 of title 5, United States Code.

(4) Exclusive means of review.--The alternative dispute resolution process under the pilot program for a project designated for arbitration under the pilot program shall be the exclusive means of review for the project.

(5) No judicial review.--A project that the Secretary has designated for arbitration under the pilot program shall not be subject to judicial review.

(B) have as a purpose-- (i) reducing hazardous fuelsfuels; reduction;

or (ii) mitigationreducing ofthe risk of, or mitigating, insect or disease infestation;

(2) Inclusion.--In designating projects for arbitration, the Secretary may include projects that receiveare categoricalcategorically exclusionsexcluded for purposes of the National Environmental Policy Act of 1969 (42 U.S.C.

(d) LimitationArbitrators.-- on(1) NumberIn ofgeneral.--The Projects.--The Secretary mayshall notdevelop designateand forpublish arbitrationa underlist theof pilotnot programfewer more than 215 projectsindividuals pereligible calendarto year.serve as arbitrators for the pilot program.

(e)(2) Arbitrators.--Qualifications.--To (1)be Appointment.--Theeligible Secretaryto shallserve developas andan publisharbitrator aunder listthis ofsubsection, notan fewerindividual thanshall 15be-- individuals(A) eligiblerecognized toby-- serve(i) as arbitrators for the pilotAmerican program.Arbitration Association;

(2) Qualifications.--To be eligible to serve as an arbitrator under this subsection, an individual shall be-- (A) certified by-- (i) the American Arbitration Association;

(f)(e) Initiation of Arbitration.-- (1) In general.--Not later than 7 days after the date on which the Secretary issues the finalapplicable decision notice or decision memo with respect to a project, the Secretary shall-- (A) notify each applicable participant and the Clerk of the United States District Court for the district in which the project is located that the project has been designated for arbitration inunder accordancethe withpilot thisprogram; Act;

and (B) include in the applicable decision documentnotice or decision memo a statement that the project has been designated for arbitration.

(2) Initiation.-- (A) In general.--A participant maythat has received a notification under paragraph (1) and is seeking to initiate arbitration regardingfor athe applicable project thatunder hasthe beenpilot designatedprogram shall file a request for arbitration underwith thisthe ActSecretary innot accordancelater with--than (i)30 sectionsdays 571after throughthe 584date of titlereceipt 5,of Unitedthe Statesnotification. Code;

and(B) (ii)Requirement.--The thisrequest paragraph.under subparagraph (A) shall include an alternative proposal for the applicable project that-- (i) describes each modification sought by the participant with respect to the project;

(B)and Requirements.--A(ii) requestis toconsistent initiatewith arbitrationthe undergoals subparagraphand (A)objectives shall--of (i)the beapplicable filedland notand laterresource thanmanagement theplan, dateall thatapplicable islaws, 30regulations, dayslegal afterprecedent theand datepolicy ofdirectives, and the notificationpurpose byand theneed Secretaryfor underthe paragraphproject. (1);

and(C) (ii)Failure includeto anmeet alternativerequirements.--A proposalparticipant forwho fails to meet the applicablerequirements projectof thatsubparagraphs describes(A) eachand modification(B) soughtshall bybe theconsidered participantto withhave respectforfeited their standing to theinitiate project.arbitration under this paragraph.

(C)(3) NoCompelled arbitration.-- (A) In general.--For any request for judicial review.--Areview with respect to a project forthat whichthe arbitrationSecretary ishas initiateddesignated for arbitration under subparagraphthe (A)pilot program-- (i) the Secretary shall notfile bein subjectthe applicable court a motion to judicialcompel review.arbitration in accordance with this Act;

(3)and Compelled(ii) arbitration.-- (A) Motion to compel arbitration.-- (i) In general.--If a participant seeks judicial review of a final decision with respect to a project, the Secretary may file in the applicable court ashall motion to compel arbitration in accordance with this Act.

(ii)(B) Fees and costs.--For any motion described in clausesubparagraph (i)(A) for which the Secretary is the prevailing party, the applicable court shall award to the Secretary-- (I)(i) full or partial court costs;

and (II)(ii) full or partial attorney's fees.

(B)(f) ArbitrationSelection compelledof byArbitrator.--For court.--Ifeach aarbitration participantinitiated seeksunder judicialthis reviewAct-- of(1) aeach project, the applicable courtparticipant shall compelpropose arbitration2 inarbitrators; accordance with this Act.

(g)and Selection(2) of Arbitrator.--For each arbitration commenced under this Act-- (1) the Secretary shall proposeselect 31 arbitratorsarbitrator from the list publishedof arbitrators proposed under subsectionparagraph (e)(1);(1).

and(g) (2)Responsibilities theof applicableArbitrator.-- participant(1) In general.--An arbitrator-- (A) shall selectaddress 1all arbitratorclaims fromor themodifications listsought ofby arbitratorseach proposedparty seeking arbitration with respect to a project under paragraphthis (1).Act;

(h) Responsibilities of Arbitrator.-- (1) In general.--An arbitrator selected under subsection (e)-- (A) shall address all claims of each party seeking arbitration with respect to a project under this Act;

(2) SelectionConsideration of proposals.--Anproposed arbitratorprojects shalland makedecision.--For aeach decisionproject withfor respectwhich toarbitration eachhas applicablebeen requestinitiated forunder initiationthis ofAct, arbitrationthe underarbitrator thisshall Actmake a decision with respect to the project by-- (A) selecting the project, as approved by the Secretary;

(B) selecting anthe alternative proposal submitted by the applicable participant;participant in the request for initiation of arbitration for the project filed under subsection (e)(2)(A);

or (C) rejecting both projectsoptions described in subparagraphs (A) and (B).

(3) Limitations.--Convene (A)hearings.--In Administrativecarrying record.--Theout evidenceparagraph before(2), anthe arbitrator undermay thisconvene subsectionthe shallSecretary beand limitedthe solelyparticipant, toincluding theby administrativetelephone recordconference foror other electronic means to consider-- (A) the project.administrative record;

(B) Noarguments modificationsand toevidence proposals.--Ansubmitted arbitratorby maythe notSecretary modifyand anythe proposalparticipant; contained in a request for initiation of arbitration of a participant under this Act.

(i)(C) Intervention.--A party may intervene in an arbitration under this Act if, with respect to the projectproject, toas whichapproved theby arbitration relates, the party--Secretary; (1) meets the requirements of Rule 24(a) of the Federal Rules of Civil Procedure (or a successor rule);

and (D) the alternative proposal submitted by the applicable participant in the request for initiation of arbitration for the project filed under subsection (e)(2)(A).

(4) Limitations.--An arbitrator may not modify any project or alternative proposal contained in a request for initiation of arbitration of a participant under this Act.

(h) Intervention.--A party may intervene in an arbitration under this Act if, with respect to the project to which the arbitration relates, the party-- (1) meets the requirements of Rule 24(a) of the Federal Rules of Civil Procedure (or a successor rule);

(j)(i) Scope of Review.--In carrying out arbitration for a project, the arbitrator shall set aside the agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, within the meaning of section 706(2)(A) of title 5, United States Code.

(k)(j) Deadline for Completion of Arbitration.--Not later than 90 days after the date on which aarbitration requestis toinitiated initiatefor arbitrationa isproject filed under subsectionthe (f)(2),pilot program, the arbitrator shall make a decision with respect to all claims or modifications sought by the requestparticipant tothat initiateinitiated the arbitration.

(l)(k) Effect of Arbitration Decision.--A decision of an arbitrator under this Act-- (1) shall not be considered to be a major Federal action;

(m)(l) Administrative Costs.-- (1) In general.--The Secretary shall-- (A) be solely responsible for the professional fees of arbitrators participating in the pilot program;

(2) Attorney'sTravel fees.--Nocosts.--The arbitratorSecretary-- may(A) awardshall attorney'sbe feessolely responsible for reasonable travel costs associated with the participation of an arbitrator in any arbitrationmeeting broughtconducted under thissubsection Act.(g)(3);

(n) Reports.-- (1) In general.--Not later than 1 year after the date on which the pilot program is established, and annually(B) thereafter, the Secretary shall submitnot tobe theresponsible Committeefor on Agriculture, Nutrition, and Forestry and the Committeetravel oncosts Energy and Natural Resources of the Senate and the Committee on Natural Resources of the House of Representatives, and publish on the website of Region 1 of the Forest Service, a reportparticipant ofunder notsubsection longer(g)(3). than 10 pages describing the implementation of the pilot program for the applicable year, including-- (A) the reasons for selecting certain projects for arbitration;

(3) Attorney's fees.--No arbitrator may award attorney's fees in any arbitration brought under this Act.

(m) Reports.-- (1) In general.--Not later than 2 years after the date on which the Secretary issues a final rule to implement the pilot program under subsection (b)(1), the Secretary shall submit to the Committee on Agriculture, Nutrition, and Forestry and the Committee on Energy and Natural Resources of the Senate and the Committee on Natural Resources of the House of Representatives, and publish on the website of the Forest Service, a report describing the implementation of the pilot program, including-- (A) the reasons for selecting certain projects for arbitration;

(2) GAO reviews and reports.-- (A) InitialReview review.--Noton latertermination.--On thantermination 2of years after the date on which the pilot program isunder established,subsection (n), the Comptroller General of the United States shall review the implementation by the Secretary of the pilot program.program, including-- (i) the reasons for selecting certain projects for arbitration under the pilot program;

(B)(ii) Review on termination.--On termination of the pilotlocation programand undertypes subsection (o), the Comptroller General of theprojects Unitedthat Stateswere shallarbitrated reviewunder the implementation by the Secretary of the pilot program.program;

(C)(iii) Report.--Ona completiondescription of the reviewoutcomes described in subparagraph (A) or (B), the Comptroller General of the Unitedprojects Statesthat shallwere submitarbitrated tounder the Committeepilot onprogram; Agriculture, Nutrition, and Forestry and the Committee on Energy and Natural Resources of the Senate and the Committee on Natural Resources of the House of Representatives a report describing the results of the applicable review.

(o)(iv) Termination.--Thea pilotdescription programof shall terminate on the dateparticipants thatwho isinitiated 5arbitration yearsunder after the date.pilot program;

(p)(v) Effect.--Nothinga indescription thisand Actsurvey affects the responsibility of the Secretaryarbitrators towho complyparticipated with--in (1) the Endangeredpilot Speciesprogram; Act of 1973 (16 U.S.C.

(vi) the type and outcome of any requests for judicial review with respect to a project that the Secretary designated for arbitration under the pilot program;

and (vii) any other items the Comptroller General of the United States may find applicable for evaluating the pilot program.

(B) Report.--After completion of the review described in subparagraph (A) and not later than 1 year after termination of the pilot program under subsection (n), the Comptroller General of the United States shall submit to the Committee on Agriculture, Nutrition, and Forestry and the Committee on Energy and Natural Resources of the Senate and the Committee on Natural Resources of the House of Representatives a report, describing the results of the applicable review.

(n) Termination.--The Secretary may not designate a project for arbitration under the pilot program on or after the date that is 5 years after the date on which the Secretary issues a final rule to implement the pilot program under subsection (b)(1).

(o) Effect.--Nothing in this Act affects the responsibility of the Secretary to comply with-- (1) the Endangered Species Act of 1973 (16 U.S.C.

or (2) the National Environmental Policy Act of 1969 (42 U.S.C.

4321 et seq.).seq.);

<all>or (3) other applicable laws.

Calendar No.

720 115th CONGRESS 2d Session S.

2160 _______________________________________________________________________ A BILL To establish a pilot program under which the Chief of the Forest Service may use alternative dispute resolution in lieu of judicial review for certain projects.

_______________________________________________________________________ December 5, 2018 Reported with an amendment