§ 211.18 - Appeal of decisions of forest officers.

(a) Matters subject to appeal. (1) Decisions of Forest Officers concerning the National Forest System and not excluded in paragraph (b) of this section are subject to appeal.

(2) Written notice of a decision shall be provided to the party or parties to a written instrument issued by the Forest Service and affected by the decision, and to any other interested person who has requested in writing notification of the specific decision.

(3) For other persons, notification of a decision may be provided through publication in a newspaper of general circulation.

(b) Matters excluded from appeal under this section. (1) Decisions appealable to the Agriculture Board of Contract Appeals, USDA, under 7 CFR part 24.

(2) Decisions involving Freedom of Information Act denials under 7 CFR part 1 or Privacy Act determinations under 7 CFR 1.118.

(3) Decisions in which the jurisdiction of another Government agency, the Comptroller General, or a court supersedes that of the Department of Agriculture, or decisions to provide advisory, non-binding recommendations to other agencies which have the final authority to implement the recommendations in question.

(4) Decisions appealable under separate administrative proceedings, including, but not limited to, those under 36 CFR 228.14 (Minerals); 36 CFR 292.15(l) (Appeals, Sawtooth National Recreation Area, Private Lands); 36 CFR 223.117 (Administration of Cooperative or Federal Sustained Yield Units); 7 CFR 21.104 (Eligibility for Relocation Payment or Amount); and 4 CFR part 21 (Bid Protests).

(5) Decisions pursuant to OMB Circular A-76.

(6) Decisions concerning contracts under the Federal Property and Administrative Services Act of 1949, as amended.

(7) Decisions covered by the Contract Disputes Act.

(8) Decisions involving personnel matters.

(9) Decisions where relief sought is reformation of a contract or award of monetary damages.

(10) Procedural decisions made under this subpart, except those involving stays and dismissals.

(11) Preliminary planning process decisions made prior to completion of final plans and guides prepared pursuant to 36 CFR part 219 and 40 CFR parts 1500-1508.

(12) Decisions resulting from review of previous decisions to terminate a recreation residence permit.

(13) Decisions to reoffer timber from returned or defaulted timber sales appealable under § 211.17.

(14) Subsequent actions to advertise and/or award a reoffered sale.

(15) Initial decisions arising from recovery and rehabilitation activities resulting from natural catastrophes appealable under § 211.16 of this subpart and subsequent implementing decisions, such as advertising timber salvage sales and/or awarding contracts made pursuant to such decisions.

(c) Filing procedures and timeliness. (1) A notice of appeal of any initial decision must be filed with the Forest Officer who made the decision, known as the Deciding Officer, within 45 days of the date of the decision. A statement of reasons to support the appeal, and any request for an oral presentation must also be filed within the 45-day period for filing a notice of appeal unless an extension is granted.

(2) A notice of appeal at the second level must be filed within 30 days of written decision. A statement of reasons to support the appeal and any request for an oral presentation must accompany any notice of appeal at the second level.

(3) The period to appeal a decision made according to 40 CFR 1505.2 shall not end prior to the 30-day period provided for in 40 CFR 1506.10.

(4) When determining time of filing, Reviewing Officers shall give precedence to United States Postal Service (USPS) postmarks over other evidence of timely filing. Filing is defined as either mailing or delivery of the appropriate documents. If documents are delivered by means other than the USPS, date of receipt determines time of filing. If the date of mailing cannot be determined from a legible USPS postmark, the Reviewing Officer may accept other evidence of timely filing. Weekends or Federal holidays are included in computing the time allowed for filing, but when the filing time would expire on a weekend or holiday, the filing time is extended to the end of the next business day.

(5) Questions on timeliness will be decided by the Reviewing Officer.

(6) Decisions may be implemented unless a stay is granted.

(d) Extensions. (1) Time for filing notice of appeal may not be extended.

(2) Written requests for extensions to request an oral presentation, to prepare a statement of reasons, to provide comments on the responsive statement, and to submit comments following an oral presentation may be granted by the Reviewing Officer for good cause shown by the Applicant. A decision will be made within 10 days of receipt and written notification will be provided.

(e) Notice of appeal content. The notice must specifically identify the decision being appealed, the decision date, the Forest Officer who made the decision, how the Appellant is affected by the decision, and the relief desired.

(f) Levels of appeal. (1) The available levels of appeal are in sequence according to the National Forest System line officer relationship. A decision made within delegated authority by any officer who serves as staff to a line officer listed below is considered a decision made by the line officer. A procedural decision cannot be appealed to a level higher than that available for the initial substantive decision from which the procedural matter arises.

(i) Initial decisions of a District Ranger may be appealed to the Forest Supervisor, with second level appeal to the Regional Forester.

(ii) Initial decisions of a Forest Supervisor may be appealed to the Regional Forester, with second level appeal to the Chief.

(iii) Initial decisions of a Regional Forester may be appealed to the Chief.

(iv) Initial decisions of the Chief may be appealed to the Secretary of Agriculture.

(2) Appeal decisions made by the Chief will be sent to the Secretary within one business day: The Secretary may exercise discretion to review such decisions, but will accept a notice of appeal or petition only for initial decisions made by the Chief.

(3) A notice of appeal of any initial decision made by the Chief shall, within 5 days of its receipt by the Chief, be sent along with the relevant decision to the Secretary for review at the Secretary's discretion. The appeal is deemed denied if the Secretary takes no action within 10 days of receiving the appeal.

(4) Appeal decisions made by the Chief may be implemented if the Secretary, within 10 days of receipt, does not exercise discretionary review.

(5) If the Secretary elects to review a decision made by the Chief, the review may be conducted based on the record before the Chief, or under other procedures the Secretary may deem appropriate, including the preparation of a responsive statement.

(6) Decisions at the final level of review constitute the final administrative determination of the Department of Agriculture.

(g) Responsive statement. At each level of appeal except for decisions of the Chief, the Deciding Officer will, within 30 days of receiving a statement of reasons, prepare a responsive statement and send it to the parties to the appeal. The responsive statement will respond to Appellant's reasons, and by specific reference may incorporate documents submitted by parties to the appeal. Appellants may, within 20 days from the mailing date of the responsive statement, provide a concise reply. Upon receipt of such reply, or at the end of the 20-day period, whichever comes first, the appeal record will be sent to the Reviewing Officer.

(h) Stay of decision pending appeal. (1) An appellant or intervenor may request a stay of decision at any time while an appeal is pending.

(2) When a request to intervene is accompanied by a stay request, the Reviewing Officer shall first decide whether to grant intervention. The 21-day period for ruling on the stay request begins on the date intervention is granted. The Reviewing Officer will not rule on the stay request if intervention is denied.

(3) In making a request for stay of decision, an appellant or intervenor must:

(i) File the request for stay and accompanying documents with the Reviewing Officer and simultaneously provide a copy to the Deciding Officer.

(ii) Enclose a copy of the Notice of Appeal or request for intervention, unless already submitted and acknowledged.

(iii) As part of the request, provide a written description of the specific project(s), activity(ies), or other action(s) to be stopped. The request must state the specific reason(s) why the stay should be granted in detail sufficient to permit the Reviewing Officer to evaluate and rule upon the stay request. Requesters’ description shall include:

(A) Specific effect(s) upon the requester in site-specific terms of the project(s), activity(ies), or other action(s) to be stopped; (B) impacts or affects to resources in the area affected by the project(s), activity(ies), or action(s) to be stopped; and (C) how the effects in paragraphs (h)(3)(iii) (A) and (B) of this section would prevent a meaningful appeal on the merits while the appeal decision is pending.

(4) The Reviewing Officer may rule on a stay request or petition to change or lift a stay at any time, but, must rule no later than 21 calendar days from receipt.

(i) If a stay is granted, the stay shall specify: Specific activities to be stopped; duration of the stay; and reasons for granting the stay. A stay shall remain in effect for 10 days after a decision on the merits, unless a different period is specified in the stay decision document, or a Reviewing Officer changes a stay decision pursuant to paragraph (h)(7) of this section.

(ii) If a stay is denied, in whole or in part, the decision document shall specify the reasons for the denial and any subsequent appeal rights.

(5) In deciding a stay request, a Reviewing Officer shall consider the following:

(i) Information provided by the requester pursuant to paragraph (h)(3)(iii) of this section including the validity of any claims of injury to the requester or the public interest.

(ii) The effect a stay decision would have on the preservation of a meaningful appeal on the merits.

(iii) Any other factors the Reviewing Officer may consider relevant.

(6) Deciding Officers may provide Reviewing Officers with a response to stay requests. A copy of any response provided shall be sent to all parties to the appeal.

(7) A Reviewing Officer may change a stay decision, according to any terms established in the stay decision itself, or at any time during pendancy of an appeal that circumstances support a change of the stay.

(i) A Reviewing Officer may change a stay decision upon petition by any party to the appeal (including the Deciding Officer) at any time that circumstances support such action. A decision not to change a stay decision is not appealable.

(ii) In making any change to a stay decision, the Reviewing Officer must consider the criteria outlined in paragraph (h)(5) of this section.

(iii) Petitions to change an existing stay decision must contain an explanation of how circumstances have changed.

(8) Levels of appeal for any decision on a stay request or change thereof are those specified in paragraphs (f), (l), and (o) of this section. Appellants may choose to file a procedural appeal of a stay decision pursuant to paragraph (o)(4) of this section or to request a change in a stay decision pursuant to paragraph (h)(7) of this section, but may not elect to pursue both options. In appeals with multiple parties (appellants and/or intervenors), once any party invokes a procedural appeal of a stay decision or a request to change a stay decision, whichever occurs first, all other parties shall be bound by that action and cannot then pursue the alternate course of action.

(9) The provisions of paragraphs (h)(1) through (h)(8) of this section apply to all appeals pending on July 20, 1987.

(i) Dismissal. (1) An Appellant may withdraw an appeal at any time by notifying the Deciding Officer and other parties to the appeal in writing.

(2) A Reviewing Officer may dismiss an appeal when:

(i) Appellant has failed to submit a timely statement of reasons and the notice of appeal provides an insufficient basis upon which to base a decision.

(ii) Relief desired by the Appellant cannot be granted under existing facts or laws.

(3) Dismissals are appealable, if a level is available as set forth in paragraph (f) of this section.

(j) Scope of appeal. Throughout all levels of appeal, an Appellant and any Intervenor shall be confined to the issues originally raised in the appeal. New information on the original issues may be introduced at any level.

(k) Provision for comments. Any person or organization may submit written comments for the record. Such comments will be considered as provided for in paragraph (p) of this section.

(l) Intervenors. (1) At the discretion of the Reviewing Officer, any person or organization having an immediate interest in the subject of an appeal may intervene by submitting written information at any level of the apppeal process. Such intervention shall not act to elevate the appeal to levels higher than available to the original Appellant.

(2) In appeals involving Intervenors, the Reviewing Officer may prescribe special procedures to expedite the process. The parties to the appeal will be notified of these procedures.

(3) Appellants and Intervenors must concurrently furnish copies of all submissions to each other; otherwise, such submissions may be removed from the appeal record. At the discretion of the Reviewing Officer, Appellants may be given time to review and comment on initial submissions by intervenors and vice versa.

(4) Appellants or Intervenors appealing a decision to a higher level must furnish copies of their notice of appeal to all other named parties to the appeal.

(m) Oral presentation. Within the appeal time limits established herein, parties to an appeal may ask to give an oral presentation. The Reviewing Officer will respond in writing to the request no later than 10 days after receiving the appeal record. If the request is granted, the Reviewing Officer will advise the parties of who will hear the presentation, and of the place, time, and date. Participants may provide documentary material at the presentation and, within 10 days after the presentation, may also submit a brief summary of their remarks.

(n) Consolidation of appeals. Multiple appeals of the same decision, or of similar decisions involving common issues, facts, or law, may be consolidated by the Reviewing Officer who may then issue one appeal decision. At the discretion of the Reviewing Officer, the Deciding Officer may prepare one responsive statement to multiple appeals.

(o) Procedural matters. (1) Decisions on stays and dismissals are the only appealable procedural decisions. Such appeals must be filed with the Deciding Officer within 30 days of the procedural decision. A statement of the Appellant's reasons must be included.

(2) Within 10 days of receipt, the Deciding Officer shall send appeals on stays and dismissals and a response to the Reviewing Officer for decision.

(3) Decisions on procedural matters will be made by the Reviewing Officer within 10 days of receipt and all parties will be notified of the decision in writing.

(4) Appeal of decisions on procedural matters cannot exceed the highest level available for the initial substantive decision appealed.

(p) Appeal record. The record consists of a distinct set of identifiable documents directly concerning the appeal, including, but not limited to, notices of appeal, comments, statements of reasons, responsive statements, procedural determinations, correspondence, summaries of oral presentations and related documents, appeal decisions, and other information the Reviewing Officer may consider necessary to reach a decision. For a period not to exceed 10 days following the date the record is received by the Reviewing Officer or from the date of the oral presentation, whichever is the later date, parties may submit additional information to the Reviewing Officer for the record. They must concurrently send copies to all other parties who may within 20 days of the date they receive such material, provide a concise response to the Reviewing Officer. Upon receipt of such response, the record will be closed. The record is open for public inspection.

(q) Request for additional information or remand for further action. If the appeal record is considered inadequate to affirm or reverse a decision, the Reviewing Officer may suspend the appeal process and request additional information, or remand the case with instructions for further action.

(r) Appeal decision. An appeal decision will be based only on the record and should be made within 30 days of the date the record is closed. The Appellant will be notified if more time is needed.

(s) Continuance of appeals. Provisions of 36 CFR 211.19 will remain in effect for appeals initially filed between June 28, 1977, and the effective date of 36 CFR 211.18. The procedures of this section shall not apply to any decision of a forest officer made after February 21, 1989.