36cfr217

[Code of Federal Regulations]

[Title 36, Volume 2, Parts 200 to 299]

[Revised as of July 1, 1998]

TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY

CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE

PART 217--APPEAL OF REGIONAL GUIDES AND NATIONAL FOREST LAND AND ESOURCE MANAGEMENT PLANS--Table of Contents

Sec. 217.1 Purpose and scope.

(a) This part provides a process by which a person or organization

interested in the management of the National Forest System may

administratively appeal decisions to approve, amend, or revise a

National Forest land and resource management plan or approve or amend a

regional guide prepared pursuant to 36 CFR part 219. This part establishes who may appeal such decisions, the kind of decisions that

may be appealed, the responsibilities of the participants in an appeal, and the procedures that apply. This part provides a review of such decisions by an official at the next administrative level.

(b) This part complements, but does not replace, numerous

opportunities to participate in and influence agency decisionmaking

provided pursuant to the National Environmental Policy Act of 1969 (NEPA) and the associated implementing regulations and procedures in 40

CFR parts 1500-1508, 36 CFR parts 215, 216, and 219, Forest Service

Manual Chapters 1920 and 1950, and Forest Service Handbooks 1909.12 and

1909.15.

Sec. 217.2 Definitions.

For the purposes of this part--

Appellant is the term used to refer to a person or organization (or

an authorized agent or representative acting on their behalf) filing a

notice of appeal under this part.

Deciding Officer means the Forest Service line officer who has the

delegated authority and responsibility to make the decision being

questioned under these rules.

Decision document means a written document that a Deciding Officer

signs to execute a decision subject to review under this part.

Specifically a Record of Decision or a Decision Notice.

Decision documentation refers to the decision document and all

relevant environmental and other analysis documentation on which the

Deciding Officer based a decision that is at issue under the rules of

this part. Decision documentation includes, but is not limited to,

environmental assessments, findings of no significant impact,

environmental impact statements, land and resource management plans,

regional guides, documents incorporated by reference in any of the

preceding documents, and drafts of these documents released for public

review and comment.

Decision Notice means the written document signed by a Deciding

Officer when the decision was preceded by preparation of an environmental assessment (40 CFR 1508.9).

Decision review or review is the term used to refer to the process

provided in this part by which a higher level officer reviews a decision of a subordinate officer in response to a notice of appeal.

Forest Service line officer. The Chief of the Forest Service or 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

under this subpart. Specifically, for the purposes of this subpart, a

Forest Service employee who hold one of the following offices and titles: Forest Supervisor, Deputy Forest Supervisor, Regional Forester,

Deputy Regional Forester Deputy Chief, Associate Deputy Chief, Associate Chief, or the Chief of the Forest Service.

Intervenor is an individual who, or organization that, is interested in or potentially affected by a decision under appeal pursuant to this part, who has made a timely request to intervene in that appeal.

Legal notice. A notice of a decision appealable under this part

published in the Federal Register or in the legal notices section of a

newspaper of general circulation as required by Sec. 217.5 of this part.

Notice of appeal is the written document filed with a Reviewing

Officer by one who objects to a decision covered by this part and who

requests review by the next higher line officer.

Participants include appellants, intervenors, the Deciding Officer,

and the Reviewing Officer.

Record of Decision is the document signed by a Deciding Officer

recording a decision that was preceded by preparation of an environmental impact statement (40 CFR 1505.2).

Reviewing Officer is the line officer one administrative level

higher than the Deciding Officer or, in the case of a discretionary

review, one level higher than the line officer who issued a first-level

appeal decision.

Sec. 217.3 Decisions subject to appeal.

(a) The following decisions are subject to appeal under this part:

(1) Decisions to approve, amend, or revise a National Forest Land

and Resource Management Plan including project or activity decisions for which environmental effects have been analyzed and disclosed within a final EIS and documented in a Record of Decision including approval,

significant amendments, or revisions of a land and resource management

plan.

(2) Decisions to approve or amend a regional guide prepared pursuant to 36 CFR part 219 and documented in a Decision Notice or Record of Decision are subject to appeal under this part, except as provided in Sec. 217.4.

(b) Decisions as defined in paragraph (a) of this section and

documented in a Decision Notice or a Record of Decision that are made by a subordinate Forest Service staff officer acting within delegated

authority are considered to be decisions of the Forest Service line

officer.

Sec. 217.4 Decisions not subject to appeal.

The following decisions are not subject to appeal under this part.

(a) Decisions on projects or activities implementing National Forest Land and Resource Management Plans including project decisions that include a non-significant amendment to a National Forest Land and

Resource Management Plan.

(b) Preliminary planning decisions or preliminary decisions as to

National Environmental Policy Act or National Forest Management Act

processes made prior to release of final plans, guides, and

environmental documents.

(c) Recommendations of Forest Service line officers to higher

ranking Forest Service or Departmental officers or to other entities

having final authority to implement the recommendations in question,

such as wilderness and wild and scenic river recommendations.

Sec. 217.5 Giving notice of decisions subject to appeal.

(a) For decisions subject to appeal under this part, Deciding

Officers shall promptly mail the appropriate decision document

(Sec. 217.3(a)(1)) to those who, in writing, have requested it, and to

those who are known to have participated in the decisionmaking process.

(b) The Deciding Officer shall also give notice of decisions

appealable under this part as follows:

(1) For all initial decisions of the Chief, notice shall be

published in the Federal Register.

(2) For all other decisions, legal notice of the decision shall be

published in a newspaper of general circulation identified pursuant to

the requirements of paragraph (d) of this section. Deciding Officers

may, at their discretion, also publish notice of their decisions in

additional newspapers. Where a Deciding Officer elects to publish such

additional notices, they shall be published after an initial legal

notice has been published in the principal newspaper identified in the

biannual Federal Register notice provided for in paragraph (d) of this

section. Any such additional newspaper notices shall indicate the date

that the appeal period ends, which shall be calculated based on the date of publication of the initial notice in the principal newspaper

identified in the biannual Federal Register notice.

(c) All notices published pursuant to this section shall include a

concise description of the decision made by title or subject matter, the date of the decision, the name and title of the official making the

decision, and information on how to obtain a copy of the decision, and

shall specify that the appeal period begins the day following the

notice's publication as provided for in Sec. 217.8(b)(1).

(d) At least twice annually, in April and in October, each

responsible Forest Service officer shall, through Federal Register

notice, advise the public of the principal newspaper to be utilized for

publishing legal notices required by this section. The Federal Register

notice shall also list all additional newspapers which the Deciding

Officer expects to use for purposes of providing additional notice

pursuant to paragraph (b) of this section.

Sec. 217.6 Participants.

(a) Other than Forest Service employees, any person or any non-

Federal organization or entity may challenge a decision covered by this part and request a review by the Forest Service line officer at the next administrative level.

(b) An intervenor as defined in Sec. 217.2 of the subpart.

Sec. 217.7 Levels of appeal.

(a) Decisions made by the Chief. If the Chief of the Forest Service

is the Deciding Officer, the notice of appeal is filed with the

Secretary of Agriculture. Review by the Secretary is wholly

discretionary. Within 15 days of receipt of a notice of appeal, the

Secretary shall determine whether or not to review the decision in

question. If the Secretary has not decided to review the Chief's decision by the expiration of the 15-day period, the requester(s) shall

be notified by the Secretary's office that the Chief's decision is the

final administrative decision of the Department of Agriculture. When the Secretary elects to review an initial decision made by the Chief, the Secretary shall conduct the review in accordance with the first level appeal procedures outlined in this rule.

(b) Decisions made by Forest Supervisors and Regional Foresters. The levels of available review are as follows:

(1) If the decision is made by a Forest Supervisor, the notice of

appeal is filed with the Regional Forester;

(2) If the decision is made by a Regional Forester, the notice of

appeal is filed with the Chief of the Forest Service.

(c) Discretionary review of dismissal decisions. Dismissal decisions rendered by Forest Service line officers pursuant to this part (Sec. 217.11) are subject to discretionary review as follows:

(1) If the initial Reviewing Officer was the Regional Forester, the

Chief has discretion to review.

(2) If the Reviewing Officer was the Chief, the Secretary of

Agriculture has discretion to review.

(d) Discretionary review of appeal decisions. Appeal decisions

rendered by Regional Foresters and the Chief pursuant to this part are

subject to discretionary review as follows:

(1) If the Reviewing Officer was the Regional Forester, the Chief

has discretion to review.

(2) If the Reviewing Officer was the Chief, the Secretary of

Agriculture has discretion to review.

Sec. 217.8 Appeal process sequence.

(a) Filing procedures. To appeal a decision under this part, a

person or organization must:

(1) File a written notice of appeal, in duplicate, with the next

higher line officer in accordance with the provisions of Sec. 217.9 of

this part.

(2) File the notice of appeal within 45 days of the date specified

in the published legal notice for non-significant amendments to land and resource management plans documented in a Decision Notice or Record of Decision.

(3) File the notice of appeal within 90 days of the date specified

in the published legal notice for land and resource management plan

approvals, significant amendments, or revisions, and for other

programmatic decisions documented in a Record of Decision.

(b) Computation of time periods. (1) The day after the published

notices required in Sec. 217.5(b) is the first day of the appeal period

provided for in paragraphs (a)(2) and (a)(3) of this section. All other

time periods applicable to this part are tied to the filing of a notice

of appeal and begin on the first day following that filing.

(2) All time periods in this rule are to be computed using calendar

days. Saturdays, Sundays, and Federal holidays are included in computing the time period for filing a notice of appeal; however, when the filing period would expire on a Saturday, Sunday, or Federal holiday, the filing time is extended to the end of the next Federal working day.

(c) Evidence of timely filing. It is the responsibility of the

appellant to file the notice on or before the last day of the filing

period. In the event of question, a legible postmark will be considered

evidence of timely filing. Where postmarks are illegible, the Reviewing

Officer shall rule on the timely filing of the appeal. Notices of appeal that are filed before the filing period specified in the published legal notice shall be accepted, but premature filing does not affect timeframes specified in this rule.

(d) Time extensions. (1) The 45-day/90-day filing periods for a

notice of appeal are not extendable.

(2) Time extensions are not permitted except as provided in

Secs. 217.12, 217.13, and 217.17 of this subpart.

(e) Upon receipt of a timely Notice of Appeal, the Reviewing Officer shall immediately forward a copy of it to the Deciding Officer.

(f) Appeal decision. Unless time has been extended as provided for

in Secs. 217.12 and 217.13, the Reviewing Officer shall not exceed the

following time periods for rendering an appeal decision:

(1) An appeal of a land and resource management plan approval,

significant amendment, or revision, or on a programmatic decision

documented in a Record of Decision, not more than 160 days from the date the notice of appeal was filed.

(2) In the event of multiple appeals of the same decision, the

appeal decision date shall be calculated from the filing date of the

last notice of appeal.

Sec. 217.9 Content of a notice of appeal.

(a) It is the responsibility of those who appeal a decision under

this part to provide a Reviewing Officer sufficient narrative evidence

and argument to show why the decision by the lower level officer should

be changed or reversed.

(b) At a minimum, a written notice of appeal filed with the

Reviewing Officer must:

(1) State that the document is a Notice of Appeal filed pursuant to

36 CFR part 217;

(2) List the name, address, and telephone number of the appellant;

(3) Identify the decision about which the requester objects;

(4) Identify the document in which the decision is contained by

title and subject, date of the decision, and name and title of the

Deciding Officer.

(5) Identify specifically that portion of the decision or decision

document to which the requester objects;

(6) State the reasons for objecting, including issues of fact, law,

regulation, or policy, and, if applicable, specifically how the decision violates law, regulation, or policy; and

(7) Identify the specific change(s) in the decision that the

appellant seeks.

Sec. 217.10 Implementation and stays of decisions.

(a) Implementation of any decision subject to appeal pursuant to

this part shall not occur for 7 calendar days following publication of

the legal notice of the decision as required in this part.

(b) Requests to stay the approval of land and resource management

plans prepared pursuant to 36 CFR part 219 shall not be granted.

However, requests to stay implementation of a project or activity

included in such a plan will be considered as provided for in paragraph

(c).

(c) Where a project or activity would be implemented before an

appeal decision could be issued, the Reviewing Officer shall consider

written requests to stay implementation of that decision pending

completion of the review.

(d) To request a stay of implementation, an appellant must--

(1) File a written request with the Reviewing Officer;

(2) Simultaneously send a copy of the stay request to any other

appellant(s), intervenor(s), and to the Deciding Officer; and

(3) Provide a written justification of the need for a stay, which at a minimum includes the following:

(i) A description of the specific project(s), activity(ies), or

action(s) to be stopped.

(ii) Specific reasons why the stay should be granted in sufficient

detail to permit the Reviewing Officer to evaluate and rule upon the

stay request, including at a minimum:

(A) The specific adverse effect(s) upon the requester;

(B) Harmful site-specific impacts or effects on resources in the

area affected by the activity(ies) to be stopped; and

(C) How the cited effects and impacts would prevent a meaningful

decision on the merits.

(e) The Reviewing Officer shall rule on stay requests within 10 days of receipt of a request.

(f) In deciding a stay request, a Reviewing Officer shall consider:

(1) Information provided by the requester pursuant to paragraph (c)

of this section;

(2) The effect that granting a stay would have on preserving a

meaningful appeal on the merits;

(3) Any information provided by the Deciding Officer or other party

to the appeal in response to the stay request; and

(4) Any other factors the Reviewing Officer considers relevant to

the decision.

(g) A Reviewing Officer must issue a written decision on a stay

request.

(1) If a stay is granted, the stay shall specify the specific

activities to be stopped, duration of the stay, and reasons for granting the stay.

(2) If a stay is denied in whole or in part, the decision shall

specify the reasons for the denial.

(3) A copy of a decision on a stay request shall be sent to the

appellant(s), intervenor(s), and the Deciding Officer.

(h) A decision may be implemented during a review unless the

Reviewing Officer has granted a stay.

(i) A Reviewing Officer's decision on a request to stay

implementation of a project or activity included in a Land and Resource

Management Plan or significant amendment or revision to the plan is not

subject to discretionary review at the next administrative level.

Sec. 217.11 Dismissal without review.

(a) A Reviewing Officer shall dismiss an appeal and close the appeal record without decision on the merits when:

(1) The notice is not filed within the time specified in Sec. 217.8

of this part;

(2) The requested relief or change cannot be granted under law,

fact, or regulation existing when the decision was made.

(3) The notice of appeal fails to meet the minimum requirements of

Sec. 217.9 of this part to such an extent that the Reviewing Officer

lacks adequate information on which to base a decision;

(4) The decision at issue is being appealed under another

administrative proceeding;

(5) The decision is excluded from appeal pursuant to Sec. 217.4 of

this part;

(6) The appellant(s) withdraws the appeal;

(7) The Deciding Officer withdraws the appealed decision; or

(8) The Chief has invoked the provisions of Sec. 217.18 of this

part.

(b) The Reviewing Officer shall give written notice of a dismissal

to all participants that includes an explanation of why the appeal is

dismissed.

(c) A Reviewing Officer's dismissal decision is subject to

discretionary review at the next administrative level as provided for in Sec. 217.7(d) of this part, except when a dismissal decision results

from withdrawal of an appeal by an appellant or withdrawal of the

initial decision by the Deciding Officer.

Sec. 217.12 Resolution of issues.

(a) When a decision is appealed, appellants or intervenors may

request meetings with the Deciding Officer to discuss the appeal, either together or separately, to narrow issues, agree on facts, and explore opportunities to resolve the issues by means other than review and decision on the appeal. Reviewing Officers may, on their own initiative,request the Deciding Officer to meet with participants to discuss the appeal and explore opportunities to resolve the issues. However,Reviewing Officers may not participate in such discussions. At the request of the Deciding Officer, or on their own initiative, Reviewing Officers may extend the time periods for review to allow for conduct of meaningful negotiations. Such extensions may occur only after the time period for intervention and for the Deciding Officer to transmit the decision documentation has elapsed. In granting an extension, the Reviewing Officer must establish a specific time period for the conduct of negotiations.

(b) The Deciding Officer has the authority to withdraw a decision,

in whole or in part, during the appeal. Where a Deciding Officer decides to withdraw a decision, all participants to the appeal will be notified that the case is dismissed. A Deciding Officer's subsequent decision to reissue or modify the withdrawn decision constitutes a new decision and is subject to appeal under this part.

Sec. 217.13 Reviewing officer authority.

(a) Discretion to establish procedures. A Reviewing Officer may

issue such determinations and procedural instructions as appropriate to

ensure orderly and expeditious conduct of the appeal process as long as

they are in accordance with all the applicable rules and procedures of

this part.

(1) In appeals involving intervenors, the Reviewing Officer may

prescribe special procedures to conduct the appeal.

(2) In case of multiple appeals of a decision, the Reviewing Officer may prescribe special procedures as necessary to conduct the review.

(3) All participants shall receive notice of any procedural

instructions or decisions governing conduct of an appeal.

(4) Procedural instructions and decisions are not subject to review

by higher level officers.

(b) Consolidation of multiple appeals. (1) The Reviewing Officer

shall determine whether to issue one appeal decision or separate

decisions in cases involving multiple notices of appeal under this part, or if the same decision is also under appeal pursuant to 36 CFR part 251. In the event of a consolidated decision, the Reviewing Officer shall give advance notice to all who have appealed the decision.

(2) Decisions to consolidate an appeal decision are not subject to

review by higher level officers.

(c) Requests for information. At any time during the appeal process, the Reviewing Officer at the levels specified in Sec. 217.7 (a), (b), or (c)(1) of this part may extend the time periods for review to request additional information from an appellant, intervenor, or the Deciding Officer. Such requests shall be limited to obtaining and evaluating information needed to clarify issues raised. The Reviewing Officer shall notify all participants of such requests and provide them opportunity to comment on the information obtained.

Sec. 217.14 Intervention.

(a) For a period not to exceed 20 days following the filing of a

notice of appeal, the Reviewing Officer shall accept requests to

intervene in the appeal from any interested or potentially affected

person or organization. Requests to intervene in an appeal during the

discretionary review (Sec. 217.7(d)) shall not be accepted.

(b) Upon receiving such a request, the Reviewing Officer shall

promptly acknowledge the request, in writing, and mail the Notice of

Appeal to the intervenor.

(c) The Reviewing Officer shall accept into the appeal record

written comments about the appeal from an intervenor for a period not to exceed 30 days following acknowledgement of the intervention request

(Sec. 217.14(b)).

(d) Intervenors must concurrently furnish copies of all submissions

to the appellant. Failure to provide copies may result in removal of a

submission from the appeal record.

(e) An intervenor cannot continue an appeal if the appeal is

dismissed (Sec. 217.11).

Sec. 217.15 Appeal record.

(a) Upon receipt of a copy of the notice of appeal, the Deciding

Officer shall assemble the relevant decision documentation (Sec. 217.2)

and pertinent records, and transmit them to the Reviewing Officer within 30 days in appeal of non-significant amendments to land and resource management plans or within 60 days for appeals of land and resource management plan approvals, significant amendments, or revisions, and for other programmatic decisions. The time period for forwarding the decision documentation is not extendable.

(b) In transmitting the decision documentation to the Reviewing

Officer, the Deciding Officer shall indicate where the documentation

addresses the issues raised in the notice of appeal. The Deciding Officer shall provide a copy of the transmittal letter to the appellant(s) and intervenor(s).

(c) The review of decisions appealed under this part focuses on the

documentation developed by the Deciding Officer in reaching decisions.

The records on which the Reviewing Officer shall conduct the review

consists of the notice of appeal, any written comments submitted by

intervenors, the official documentation prepared by the Deciding Officer in the decisionmaking process, the Deciding Officer's letter

transmitting those documents to the Reviewing Officer, and any appeal

related correspondence, including additional information requested by

the Reviewing Officer pursuant to Sec. 217.13 of this part.

(d) It is the responsibility of the Reviewing Officer to maintain in one location a file of documents related to the decision and appeal.

(e) Closing the record. (1) In appeals with intervenors, the appeal

record shall close upon receipt of comments on the appeal by the

intervenor, but not later than the end of the 30-day period provided for intervenors to submit comments (Sec. 217.14(c)).

(2) In appeals without intervenors, the appeal record shall close

upon receipt of the decision documentation from the Deciding Officer,

unless time has been extended as provided for in Secs. 217.12 and

217.13.

(f) The appeal record is open to public inspection at any time

during the review.

(g) In appeals involving initial decisions of the Chief (217.7(a)),

the establishment of an administrative record as defined in paragraph

(a) of this section shall not begin unless the Secretary elects to

review the appeal. Except for the initial notice of appeal, any filings

made previous to the Secretary's election to review will not be

accepted.

Sec. 217.16 Decision.

(a) The Reviewing Officer shall not issue a decision prior to the

record closing (Sec. 217.15(e)).

(b) The Reviewing Officer's decision shall, in whole or in part,

affirm or reverse the original decision. The Reviewing Officer's

decision may include instructions for further action by the Deciding

Officer.

(c) An appeal decision must be consistent with applicable law,

regulations, and orders.

(d) The Reviewing Officer shall send a copy of the decision to all

participants and to others upon request.

(e) Unless a higher level officer exercises the discretion to review a Receiving Officer's decision as provided at Sec. 217.7(d), the

Reviewing Officer's decision is the final administrative decision of the Department of Agriculture and the decision is not subject to further review under this part.

Sec. 217.17 Discretionary review.

(a) Petitions or requests for discretionary review shall not, in and of themselves, give rise to a decision to exercise discretionary review. In electing to exercise discretion, a Reviewing Officer should consider,but is not limited to, such factors as controversy surrounding the decision, the potential for litigation, whether the decision is

precedential in nature, or whether the decision modifies existing or

establishes new policy.

(b) As provided for a Secs. 217.7 (c) and (d), 217.10(h), and

217.11, certain dismissal decisions rendered by Forest Service line

officers, and appeal decisions rendered by Regional Foresters and the

Chief (Sec. 217.16) are subject to discretionary review at the next

highest administrative level. Within one day following the date of any

decision subject to such discretionary review, the Reviewing Officer

shall forward a copy of the decision and the decision documents

(Sec. 217.2) upon which the appeal was predicated to the next higher

officer.

(c) When a stay of implementation is in effect, it shall remain in

effect until the end of the 15-day period in which a higher level

officer must decide whether or not to review a Reviewing Officer's

decision (Sec. 217.17(d)). If the higher level officer decides to review the Reviewing Officer's decision, the stay will remain in effect until a decision is issued (Sec. 217.17(f)), or until

the end of the 30-day review period provided in Sec. 217.17(g) whichever is less.

(d) The higher level officer shall have 15 days from date of receipt to decide whether or not to review a lower level appeal decision, and may request and use the appeal record in deciding whether or not to review the decision, including decisions to dismiss. If the record is requested, the 15-day period is suspended at that point. The lower level Reviewing Officer shall forward it within 5 days of the request. Upon receipt, the higher level officer shall have 15 days to decide whether or not to review the lower level decision. If that officer takes no action by the expiration of the 15-day period or the additional 15-day period following receipt of the record, the decision of the Reviewing Officer stands as the final administrative decision of the Department of Agriculture. All participants shall be notified by the discretionary level whether or not the decision will be reviewed.

(e) Where an official exercises the discretion in Sec. 217.7 (d) or

(e) of this subpart to review a dismissal or appeal decision, the

discretionary review shall be made on the existing appeal record and the lower level Reviewing Officer's appeal decision. The record shall not be reopened to accept additional submissions from any source including the Reviewing Officer whose appeal decision is being reviewed.

(f) The discretionary level Reviewing Officer shall conclude the

review within 30 days of the date of the notice issued to participants

that the lower decision will be reviewed, and shall send a copy of the

review decision to all participants.

(g) If a discretionary review decision is not issued by the end of

the 30-day review period, appellants and intervenors shall be deemed to

have exhausted their administrative remedies for purposes of judicial

review. In such case, the participants shall be notified by the

discretionary level.

Sec. 217.18 Policy in event of judicial proceedings.

It is the position of the Department of Agriculture that any filing

for Federal judicial review of a decision subject to review under this

part is premature and inappropriate unless the plaintiff has first

sought to invoke and exhaust the procedures available under this part.

This position may be waived upon a written finding by the Chief.

Sec. 217.19 Applicability and effective date.

(a) The appeal procedures established in this part apply to all

appealable decision documents published on or after February 6, 1991.

(b) Notices of appeal filed under 36 CFR 211.16, 36 CFR 211.18, 36

CFR 228.14, and 36 CFR 292.15 prior to February 22, 1989 remain subject

to those procedures.