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EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
Table of Contents
11 - GIVING NOTICE OF OPPORTUNITY TO COMMENT ............................................ 2
11.1 - Policy and Coordination with NEPA Regulations ........................................................... 2
11.2 - Proposed Action Documentation and Timing of Comment Period .................................. 2
11.3 - Mailing of Proposed Action ............................................................................................. 3
11.4 - Legal Notice Requirements .............................................................................................. 3
11.5 - Time Periods for Comment .............................................................................................. 7
11.6 - Supplemented or Revised Environmental Documents and New Decisions ..................... 7
12 - RECEIVING COMMENTS ....................................................................................... 8
13 - CONSIDERING COMMENTS ................................................................................ 10
14 - NOTIFICATION OF DECISIONS ........................................................................... 14
14.1 - Mailing Decision ............................................................................................................ 14
14.2 - Legal Notice of Decisions .............................................................................................. 14
15 - EMERGENCY SITUATIONS ................................................................................. 17
15.1 - Definition ........................................................................................................................ 17
15.2 - Process for Emergency Situation Determinations .......................................................... 17
16 - DECISION IMPLEMENTATION AND WAITING PERIODS .................................. 20
16.1 - Implementation Timeframes for Appealable Decisions ................................................. 20
WO AMENDMENT 1509.12-2007-1
EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
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FSH 1509.12 - 36 CFR 215 APPEALS HANDBOOK
CHAPTER 10 - NOTICE, COMMENT, AND DECISION
This chapter describes how to involve the public in the decision making process by providing
them the opportunity to comment on the proposed action. The Appeals Reform Act (ARA)
(Pub. L. 102-381, 106 Stat. 1409) states that “prior to proposing an action . . . the Secretary shall
give notice of the proposed action and the availability of the action for public comment . . . .”
A proposed action is defined in Title 36, Code of Federal Regulations, section 215.2 (36 CFR
215.2). The action is a proposal made by the Forest Service that is a project or activity
implementing a land management plan and subject to the notice and comment provisions of
36 CFR 215. This process includes publishing a legal notice of opportunity to comment,
accepting and considering those comments, determining what comments are substantive, and
publishing a legal notice with appeal rights, if any, once a decision is made. Submission of
substantive comments during the comment period is a prerequisite for eligibility to appeal under
36 CFR part 215.
11 - GIVING NOTICE OF OPPORTUNITY TO COMMENT
11.1 - Policy and Coordination with NEPA Regulations
The comment period established by the ARA does not replace scoping described under the
National Environmental Protection Act (NEPA) regulations. The rules at 36 CFR part 215
complement, but do not replace, other opportunities to participate in the agency’s project and
activity planning (36 CFR 215.1(b)). The Council on Environmental Quality (CEQ) regulations
implementing NEPA addresses scoping at 40 CFR 1501.7. The Forest Service NEPA handbook,
FSH 1909.15, section 11, also addresses scoping.
The notice and comment period required for proposed actions in 36 CFR 215.5 provides a clearly
defined period when public comments on projects and activities, analyzed and documented in an
environmental assessment (EA) or an environmental impact statement (EIS), are solicited. This
comment period provides the opportunity to make substantive comments regarding concerns and
objections known to the responsible official during a time when they can be considered and
responded to efficiently and prior to a decision.
11.2 - Proposed Action Documentation and Timing of Comment Period
(See 36 CFR 215.5(a)(2) for additional direction.)
For projects and activities analyzed and documented in an EIS, the Forest Service satisfies the
requirements of the ARA by using the notice and comment period on a draft environmental
impact statement (DEIS) required by Council on Environmental Quality’s (CEQ) regulations at
40 CFR part 1503 and section 1506.10. For proposed actions described in an EIS, the
responsible official should follow CEQ regulations 40 CFR 1502.9(a), Forest Service NEPA
handbook FSH 1909.15, section 23.3, and guidance in 36 CFR 215.5. For proposed projects and
activities analyzed and documented in an EA, the responsible official has full discretion to
choose the appropriate timing of the comment period. At a minimum, the information circulated
WO AMENDMENT 1509.12-2007-1
EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
for comment should describe the proposed action and its location in enough detail to allow the
interested public to provide meaningful comment on the consequences of the proposed action.
This requirement could be satisfied with the circulation of a detailed description of the NEPA
proposed action. In other instances, the responsible official may choose to include a detailed
description of the alternatives, including a preliminary effects analysis, or, may choose to
circulate the completed EA. These are just a few examples, not an exhaustive list, of instances
when a proposed action may be circulated for comment. The responsible official may choose
any time period from project scoping to decision making.
The Responsible Official should consider the complexity of the project, the degree of public
controversy, and other relevant factors in determining when to circulate the proposed action for
public comment. The purpose of the comment period is to provide the Responsible Official with
meaningful input during project planning and prior to making a decision.
11.3 - Mailing of Proposed Action
(See 36 CFR 215.5(a)(3) for additional direction.)
Promptly mail the document describing the proposed action to any individual or organization
who has requested it and to those who have participated in project planning. In keeping with the
intent of the ARA, this mailing should occur close in time to publishing the legal notice. The
public may be informed using e-mail and posting the proposed action on the World Wide Web.
Keep a complete record of who was mailed the document and when it was mailed in case there is
a question about compliance with this requirement. A copy of the mailing list with this
information should be kept in the project record.
11.4 - Legal Notice Requirements
(See 36 CFR 215.5(b)(1) for additional direction.)
The responsible official is responsible for publishing a legal notice in the newspaper of record,
informing the public of the opportunity to comment on a proposed action. The publication date
in the newspaper of record determines the start of the 30-day comment period. A copy of the
newspaper legal notice showing the date published must be kept in the project record.
Supplemental notice may also be provided through publication in other newspapers, news
releases, mailings, telephone contacts, letters, or by phone. Any supplemental notice should
make clear that it is merely an additional, supplemental notice and not the legal notice, and that
the comment period is based on the publication date of the legal notice in the newspaper of
record.
WO AMENDMENT 1509.12-2007-1
EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
For a proposed action that is analyzed and documented in a draft environmental impact statement
(DEIS), the legal notice must state that the opportunity to comment ends after a specified number
of days following the date of publication of the notice of availability (NOA) in the Federal
Register. The legal notice must be published after the NOA and contain the publication date.
See exhibit 01 for a sample legal notice for an EA, and exhibit 02 for a sample legal notice for a
DEIS.
WO AMENDMENT 1509.12-2007-1
EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
11.4 - Exhibit 01
Sample Legal Notice
30-Day Comment Period EA Only
Opportunity to Comment on [project name]
The Forest Service, XXX National Forest, __XXX_ Ranger District, is preparing an Environmental
Assessment for [TITLE of Action and Concise Description of the Proposed Action, a general description
of the proposed action location sufficient to be able to identify location].
The proposed action description and other information are available for review at [applicable Forest
offices]. Additional information regarding this action can be obtained from: [NAME, ADDRESS, PHONE
#, E-Mail address].
The purpose of this comment period is to provide an opportunity for the public to provide early and
meaningful participation on a proposed action prior to a decision being made by the Responsible Official.
Those who provide substantive comments during this comment period are eligible to appeal the decision
pursuant to 36 CFR part 215 regulations.
[Only applicable to emergency situations]- The Responsible Official is requesting an emergency situation
determination for the project as provided for in 36 CFR 215.10.
How to Comment and Timeframe
Written, facsimile, hand-delivered, oral, and electronic comments concerning this action will be accepted
for 30 calendar days following the publication of this notice in the ______________ [fill in the newspaper
of record]. The publication date in the newspaper of record is the exclusive means for calculating the
comment period for this analysis. Those wishing to comment should not rely upon dates or timeframe
information provided by any other source. The regulations prohibit extending the length of the comment
period.
Written comments must be submitted to: [Responsible Official NAME, TITLE, ADDRESS, (street, postal,
facsimile]. The office business hours for those submitting hand-delivered comments are: [business hours]
Monday through Friday, excluding holidays.
Oral comments must be provided at the Responsible Official’s office during normal business hours via
telephone [office telephone number] or in person, or at an official agency function (i.e. public meeting)
that is designed to elicit public comments. Electronic comments must be submitted in a format such as an
email message, plain text (.txt), rich text format (.rtf), or Word (.doc) to [email address]. In cases where
no identifiable name is attached to a comment, a verification of identity will be required for appeal
eligibility. If using an electronic message, a scanned signature is one way to provide verification.
It is the responsibility of persons providing comments to submit them by the close of the comment period.
Only those who submit timely and substantive comments will have eligibility to appeal the subsequent
decision under 36 CFR 215.
Individuals and organizations wishing to be eligible to appeal must meet the information requirements of
36 CFR 215.6.
WO AMENDMENT 1509.12-2007-1
EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
11.4 - Exhibit 02
Sample Legal Notice
Comment Period EIS Only
Opportunity to Comment on [project name] DEIS
The Forest Service, XXX National Forest, __XXX_ Ranger District, has prepared a Draft Environmental
Impact Statement for [TITLE of Action which must match Notice of Intent, and Concise Description of the
Proposed Action, a general description of the proposed action location sufficient to be able to identify
location].
The Draft EIS is available for review at [applicable Forest offices, internet address, etc.]. Additional
information regarding this action can be obtained from: [NAME, ADDRESS, PHONE #, E-Mail address].
The purpose of this comment period is to provide an opportunity for the public to provide early and
meaningful participation on a proposed action prior to a decision being made by the Responsible Official.
Those who provide substantive comments during the comment period provided at 40 CFR 1503.1 are eligible
to appeal the decision pursuant to 36 CFR part 215 regulations.
[Only applicable to emergency situations]- The Responsible Official is requesting an emergency situation
determination for the project as provided for in 36 CFR 215.10.
How to Comment and Timeframe
[The legal notice must be published after the Notice of Availability (NOA) is published in the Federal
Register and must contain the NOA publication date.]
The Environmental Protection Agency published a Notice of Availability (NOA) for the DEIS in the Federal
Register on [enter date], the opportunity to provide comments to establish eligibility to appeal under 36 CFR
215 ends XX days following that date. Written, facsimile, hand-delivered, oral, and electronic comments
concerning this action will be accepted. The publication date of the NOA in the Federal Register is the
exclusive means for calculating the comment period for a proposed action documented in a draft EIS. Those
wishing to comment should not rely upon dates or timeframe information provided by any other source.
Written comments must be submitted to: [Responsible Official NAME, TITLE, ADDRESS, (street, postal,
facsimile]. The office business hours for those submitting hand-delivered comments are [business hours]
Monday through Friday, excluding holidays.
Oral comments must be provided at the Responsible Official’s office during normal business hours via
telephone [office telephone number] or in person, or at an official agency function (i.e. public meeting) that is
designed to elicit public comments. Electronic comments must be submitted in a format such as an email
message, plain text (.txt), rich text format (.rtf), or Word (.doc) to [email address]. In cases where no
identifiable name is attached to a comment, a verification of identity will be required for appeal eligibility. If
using an electronic message, a scanned signature is one way to provide verification.
It is the responsibility of persons providing comments to submit them by the close of the comment period.
Only those who submit timely and substantive comments will have eligibility to appeal the subsequent
decision under 36 CFR 215.
Individuals and organizations wishing to be eligible to appeal must meet the information requirements of 36
CFR 215.6.
WO AMENDMENT 1509.12-2007-1
EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
11.5 - Time Periods for Comment
(See 36 CFR 215.6(a) for additional direction.)
For an EA, the 30-day comment period begins on the first day after publication of legal notice in
the newspaper of record (36 CFR 215.6(a)(1)(i)). This time period cannot be extended (36 CFR
215.6(a)(1)(iv)). Before the decision is made, the responsible official may designate an
additional comment period. This designation is at the discretion of the responsible official and is
not an extension of the comment period prohibited in 36 CFR 215.6(a)(1)(iv). Timely
submission of substantive comments during either comment period(s) provides eligibility to
appeal (secs. 13 and 21).
For a DEIS, the time period for comment is based on the NEPA requirement for publication of a
notice of availability (NOA) in the Federal Register by the Environmental Protection Agency
(EPA). An EIS shall be filed with EPA no earlier than it is transmitted to commenting agencies
and made available to the public (40 CFR 1506.9). The comment period begins the day after an
EPA’s NOA appears in the Federal Register (40 CFR 1506.10(a); FSH 1909.15, sec. 23.2 (4)).
Extension of the comment period must meet the requirements of 40 CFR 1506.10. Timely
submission of substantive comments during either the original or an extension of the DEIS
comment period provides eligibility to appeal.
11.6 - Supplemented or Revised Environmental Documents and New Decisions
(See 36 CFR 215.3(d) and 215.11(b) for additional direction.)
The responsible official shall provide a 30-day notice and comment period for a proposed action
resulting in a revision of an EA based on new information or changed circumstances (36 CFR
215.3 (d)). An additional comment opportunity for supplementation of an EIS based on new
information or changed circumstances is provided for in 40 CFR 1502.9(c). After a decision by
a responsible official has been made, and when the consideration of new information leads to
supplementation or revision of the environmental document, the responsible official shall follow
the guidance in FSH 1909.15, section 18, for correction, supplementation, or revision of
environmental documents and reconsideration of decisions to take action. This situation may
arise if new information or changed circumstances relating to the environmental impacts of a
proposed action is brought to the attention of the responsible official or as the result of
instructions in an appeal decision letter (36 CFR 215.18(b)(1)). If the responsible official
decides to revise or supplement the environmental document and change his or her original
decision, then a new comment period is required for the proposed action.
WO AMENDMENT 1509.12-2007-1
EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
12 - RECEIVING COMMENTS
(See 36 CFR 215.6 for additional direction.)
All comments received shall be placed in the project record and become a matter of public
record. Oral comments must be documented, dated, and placed in the project record. See
exhibit 01 for a sample contact form for oral comments.
An electronic inbox must be available at each administrative unit identified to receive comments
(sec. 04). Generally, these electronic inboxes should be used for this purpose only and not made
into generic comment inboxes. Appellants filing electronic comments should receive an
automatic confirmation of receipt. The confirmation is not instantaneous. Therefore, keep
comments in the mailbox for at least 24 hours so that the computer can generate the automatic
electronic acknowledgement. If commenter do not receive an automatic confirmation of receipt
after this time period, it may be a configuration problem and should be referred to the End User
Support Center (EUSC) at 888-426-3872.
Envelopes should be kept with written comments to document when they were postmarked.
Electronic comments should be printed with the date and placed in the record.
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EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
12 - Exhibit 01
Sample Contact Form for Oral Comments
Date __________________
Project ______________________________________________________________________
Name _______________________________________________________________________
Address _____________________________________________________________________
__________________________________________________________________________________________
Phone_______________________________________________________________________
Email address ________________________________________________________________
Comments __________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
Attachments _________________________________________________________________
Name and signature of person taking comments
__________________________________________________________________________________________
__________________________________________________________________________________________
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
13 - CONSIDERING COMMENTS
(See 36 CFR 215.6 for additional direction for considering comments and 40 CFR 1503.4 for
direction in responding to comments to a draft environmental impact statement.)
Substantive comments are defined in Title 36, Code of Federal Regulations, section 215.2
(36 CFR 215.2) as “comments within the scope of the proposed action, specific to the proposed
action, have a direct relationship to the proposed action, and include supporting reasons for the
responsible official to consider.” Substantive comments provide meaningful and useful
information about concerns and issues and can be used to enhance project analysis and decision
making. It is the responsibility of the responsible official to determine if a comment meets the
definition of a substantive comment (36 CFR 215.5(a)(6)). If there is a question about whether a
comment is substantive or not, it should be deemed substantive. The determination of the
responsible official of which comments are substantive and who submitted them (whenever
practical), should be written, dated, and placed in the record.
Comments received may be documented in several ways, including:
1. Creating a document that identifies substantive comments and how each comment was
considered in the project analysis or decision.
2. Addressing comments within the environmental assessment or decision notice.
3. Using a matrix displaying the substantive comment, by whom, and how it was
considered (ex. 01).
4. Making margin notes of each substantive comment on a photocopy of the submitted
comment.
If an entire submission from a commenter contains no substantive comments, or only supportive
comments, include and document the specific rationale for this conclusion in the project record.
If the project is appealed, the responsible official shall include in the transmittal of the decision
documentation a list of individuals and organizations that submitted substantive comments
(36 CFR 215.15(e)(1)).
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EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
13 - Exhibit 01
Summary of Proposed Action Comments Form
Project North Mountain Timber Sale
Publication Date June 9, 2003
End of Comment Period July 9, 2003
The comments received are herein identified as either being a “Substantive Comment” or not. To meet the definition of being a
“Substantive Comment”, the comment must meet the following: (1) be within the scope of the proposed action (2) be specific to the
proposed action, (3) have a direct relationship to the proposed action; and (4) include supporting reasons for the Responsible Official to
consider.
Comments were received from (1 participant): Christine Smith, representing Environmental Care.
Comment
Submitted
By:
#1
Environmental
Care
Date
Comment
Received
7/9/03
Comment
The project does not match the
purpose and need since there is no
mention of fire suppression and the
need for strategic fuelbreaks and
firelines across the landscape, yet it
contains at least 6 acres of firelines in
the project description without
disclosing the locations of these
firelines.
Substantive
Comment?
(Yes/No)
Responsible Official’s Consideration of
Substantive Comment
Yes
Suppression capability is directly connected to fire
hazard ratings (EA page 3, third paragraph).
There are no strategic landscape fuelbreaks or
firelines incorporated within the project. A total
of 6 acres of firelines will be used for prescribed
fire control purposes during fuels reduction
treatments in specific units identified in the EA,
Appendix A, page 33, Fuels treatment FF.
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DURATION: This amendment is effective until superseded or removed.
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
13 - Exhibit 01--Continued
Comment
Submitted
By:
#2
Environmental
Care
Date
Comment
Received
7/9/03
Comment
Olive thorn lichen will not be
protected by cutting exclusions
around just the specific trees that
are known to contain populations.
Substantive
Comment?
(Yes/No)
Yes
Responsible Official’s Consideration of
Substantive Comment
The comment and its supporting reasons are
correct as stated; however, the proposed action will
not be protecting olive thorn lichen with cutting
exclusion around just the specific trees. Although
not stated directly in the EA or biological
evaluation, as standard practice exclusion areas for
plant species of concern always include a buffer
that is a distance equivalent to the height of a local
site tree, unless there is an overriding biological
reason to differ from this prescription. This is
considered adequate to maintain current light and
humidity conditions and to avoid adverse impacts
of proposed projects. The excluded areas of olive
thorn lichen in Unit #2 include the three
subpopulations and a buffer around the known
individuals has been identified (flagged) on the site
by the project botanist.
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
13 - Exhibit 01--Continued
Comment
Submitted
By:
#3
Environmental
Care
Date
Comment
Received
7/9/03
Comment
By referencing documents and
analysis contained within the
project file and not available for
public review, the EA lacks
sufficient detail for the public to
understand the purpose and need for
the proposed actions
Substantive
Comment?
(Yes/No)
No
Responsible Official’s Consideration of
Substantive Comment
The content requirements of environmental
assessments (EAs) are found at Forest Service
Handbook FSH 1909.15, Chapter 41.2: “An
environmental assessment [s]hall include brief
discussions of the need for the proposal, of the
alternatives as required by [the NEPA] section
102(2)(E), of the environmental impacts of the
proposed action and alternatives, and a listing of
agencies and persons consulted.” (40 CFR
1508.9(b)). In addition, there were no significant
issues raised in the public scoping phase of the
environmental analysis specific to the proposed
action that warranted additional disclosure
necessary to support a FONSI.
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
14 - NOTIFICATION OF DECISIONS
(See 36 CFR 215.7 for additional direction.)
14.1 - Mailing Decision
The requirements for circulating and filing an environmental impact statement (EIS) are found in
Title 40, Code of Federal Regulations, sections 1502.19 and 1506.9 (40 CFR 1502.19 and
1506.9). Timing of a decision on an EIS is covered in 40 CFR 1506.10.
The record of decision (ROD) for an EIS, or the decision notice (DN) and finding of no
significant impact (FONSI) for an environmental assessment (EA), shall be promptly mailed to
those who requested it and to those who submitted substantive comments during the comment
period (36 CFR 215.7(a)). When mailing out the decision document (ROD, or DN and FONSI),
a copy of the EIS or EA may be included.
In addition to the requirements in 36 CFR 215.7(a), FSH 1909.15, section 44, requires that an
EA and DN and FONSI be provided to agencies, organizations, and persons interested in or
affected by the proposed action. This section also requires the responsible official to promptly
mail the DN and FONSI to those who have requested it in writing and to those who are known to
have participated in the project development process. The responsible official may inform the
public of a decision through e-mail or posting on the World Wide Web.
A copy of the mailing list for the DN and FONSI, or the ROD should be dated and placed in the
record.
14.2 - Legal Notice of Decisions
(See 36 CFR 215.7(b) for additional direction.)
See exhibits 01 and 02 for samples of legal notices for a DN and FONSI and a ROD.
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14.2 - Exhibit 01
Sample Legal Notice for Decision Notice and FONSI for EA
Notice of Decision [Project name, Forest, District, County]
As the Responsible Official, Forest Supervisor [enter name] or District Ranger [enter name] signed a Decision
Notice and Finding of No Significant Impact (FONSI) on [enter date] approving the [project name]. The selected
alternative includes [describe actions generally and location].
Copies of the Environmental Assessment and Decision Notice/FONSI are available at [applicable Forest offices,
internet address, etc].
Decision Subject to Appeal
This decision is subject to administrative review (appeal) pursuant to 36 CFR Part 215.
The appeal must be filed (regular mail, fax, email, hand-delivery, or express delivery) with the Appeal Deciding
Officer at [Appeal Deciding Officer, NAME, TITLE, ADDRESS, (street, postal, fax addresses].
The office business hours for those submitting hand-delivered appeals are: [business hours] Monday through Friday,
excluding holidays. Electronic appeals must be submitted in a format such as an email message, plain text (.txt), rich
text format (.rtf), or Word (.doc) to [email address]. In cases where no identifiable name is attached to an electronic
message, a verification of identity will be required. A scanned signature is one way to provide verification.
Appeals, including attachments, must be filed within 45 days from the publication date of this notice in the [name of
newspaper], the newspaper of record. Attachments received after the 45 day appeal period will not be considered.
The publication date in the [name of newspaper], newspaper of record, is the exclusive means for calculating the
time to file an appeal. Those wishing to appeal this decision should not rely upon dates or timeframe information
provided by any other source.
Individuals or organizations who submitted substantive comments during the comment period specified at 215.6
may appeal this decision. The notice of appeal must meet the appeal content requirements at 36 CFR 215.14.
Implementation
If no appeals are filed within the 45-day time period, implementation of the decision may occur on, but not before, 5
business days from the close of the appeal filing period. When appeals are filed, implementation may occur on, but
not before, the 15th business day following the date of the last appeal disposition.
Emergency Situations [when applicable]
The Chief of the Forest Service [or Regional Forester] has determined that an emergency situation exists (36 CFR
215.10), for [describe project or portion thereof]. Implementation may begin immediately for that portion of the
decision determined to be an emergency.
Decision Not Subject to Appeal [ONLY if applicable]
The 30-day comment period for this project ended on [enter date]. Since no substantive comments expressing
concerns were received, or only supportive comments were received during the comment period, this decision is not
subject to appeal (36 CFR 215.12). Implementation may begin immediately.
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
14.2 - Exhibit 02
Sample Legal Notice for Record of Decision for EIS
Notice of Decision [must match ROD/FEIS project title name, Forest, District, County]
As the Responsible Official, Forest Supervisor [enter name] or District Ranger [enter name] signed a Record of Decision
on [enter date] approving the [project name]. The selected alternative includes [describe actions generally and location].
Copies of the Final Environmental Impact Statement and Record of Decision are available at [applicable Forest offices,
internet address, etc].
Decision Subject to Appeal
This decision is subject to administrative review (appeal) pursuant to 36 CFR Part 215.
The appeal must be filed (regular mail, fax, email, hand-delivery, or express delivery) with the Appeal Deciding Officer at:
[Appeal Deciding Officer, NAME, TITLE, ADDRESS, (street, postal, fax, email addresses].
The office business hours for those submitting hand-delivered appeals are: [business hours] Monday through Friday,
excluding holidays. Electronic comments must be submitted in a format such as an email message, plain text (.txt), rich
text format (.rtf), or Word (.doc) to [email address]. In cases where no identifiable name is attached to an electronic
message, a verification of identity will be required. A scanned signature is one way to provide verification.
Appeals, including attachments, must be filed within 45 days from the publication date of this notice in the [name of
newspaper], the newspaper of record. Attachments received after the 45 day appeal period will not be considered. The
publication date in the [name of newspaper], newspaper of record, is the exclusive means for calculating the time to file an
appeal. Those wishing to appeal this decision should not rely upon dates or timeframe information provided by any other
source.
Individuals or organizations who submitted substantive comments during the comment period specified at 215.6 may
appeal this decision. The notice of appeal must meet the appeal content requirements at 36 CFR 215.14.
Implementation
If no appeals are filed within the 45-day time period, implementation of the decision may occur on, but not before, 5
business days from the close of the appeal filing period. When appeals are filed, implementation may occur on, but not
before, the 15th business day following the date of the last appeal disposition.
Emergency Situations [when applicable]
The Chief of the Forest Service [or Regional Forester] has determined that an emergency situation exists (36 CFR 215.10),
for [describe project or portion thereof]. Implementation may begin immediately for that portion of the decision
determined to be an emergency.
Decision Not Subject to Appeal [ONLY if applicable]
The XX-day comment period for this project ended on [enter date]. Since no substantive comments expressing concerns
were received, or only supportive comments were received during the comment period, this decision is not subject to
appeal (36 CFR 215.12). Implementation may begin after complying with the time frames and publication requirements
described in 40 CFR 1506.10(b)(2).
WO AMENDMENT 1509.12-2007-1
EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
15 - EMERGENCY SITUATIONS
(See 36 CFR 215.10 for additional direction.)
15.1 - Definition
An emergency situation under Title 36, Code of Federal Regulations, section 215.10 (36 CFR
215.10), is not the same as alternative arrangements with the Council on Environmental Quality
described in 40 CFR 1506.11. An emergency situation in 36 CFR 215.2 is defined as “A
situation on National Forest System (NFS) lands for which immediate implementation of all or
part of a decision is necessary for relief from hazards threatening human health and safety or
natural resources on NFS or adjacent lands; or that would result in substantial loss of economic
value to the federal government if implementation of the decision were delayed.” The
determination that an emergency situation exists does not exempt an activity from appeal. The
determination only eliminates the automatic stays built into the appeal review process.
15.2 - Process for Emergency Situation Determinations
Consider the following when determining the need to make an emergency situation
determination:
1. What is the emergency-triggering event?
2. When did the emergency-triggering event occur?
3. What is the general nature of the emergency situation?
4. What is the area directly affected by the emergency-triggering event?
5. What portion of the affected area is proposed for treatment in the pending National
Environmental Policy Act (NEPA) decision and why is it proposed instead of other areas?
6. If only part of the affected area is proposed for treatment before close of the 105-day
period, why is it proposed instead of other areas?
7. What are the specific activities being considered for treatment before close of the 105day stay period and why?
8. How will the emergency situation be addressed or modified by the specific activities
being considered for treatment before close of the 105-day period?
9. If action is not taken before close of the 105-day period, what natural resources and/or
social values are directly and indirectly at risk within and adjacent to the treatment area?
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DURATION: This amendment is effective until superseded or removed.
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
10. If implementation of the decision were delayed, what are the substantial losses in
economic value to the Federal Government?
11. What is the project’s current stage of the NEPA process?
12. What public involvement has occurred since the emergency-triggering event?
Requests for an emergency situation determination should generally include:
1. The nature of the emergency situation, such as the hazard threatening human health
and safety, natural resources on NFS or adjacent non-Federal lands; or substantial loss of
economic value to the Federal government.
2. A description of the proposed action, the purpose and need for the project, and a
summary of possible environmental impacts which could result from not proceeding with the
proposed action.
3. Mitigation measures that will be included to reduce the environmental effects of the
proposed action.
The temporal scope of the request should be limited to the specific emergency-responsive
activities, and their connected actions, that can be accomplished within the 105-day “stay” period
(represented by the 45-day appeal filing period, the up-to-45-day appeal review period, and the
15-day stay after disposition of the last appeal). An example of a request letter is provided in
exhibit 01.
Implementation timeframes for an emergency situation are addressed in 36 CFR 215.10 and
differ for an environmental assessment and an environmental impact statement based on the
timeframe and publication requirements described in 40 CFR 1506.10 (b)(2).
WO AMENDMENT 1509.12-2007-1
EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
15.2 - Exhibit 01
Sample Request for Emergency Situation Determination
File Code: 1570-1
(1950)
Date:
December 1, 2003
Subject:
Request for Emergency Situation Determination (36 CFR 215.10(b))
To:
Regional Forester
I am requesting an Emergency Situation Determination (36 CFR 215.10) for the Smokey Fire Recovery
Project because substantial loss of economic value to the Federal Government will occur if
implementation of the decision were delayed.
In July 2002, the Smokey Fire burned approximately 24,525 acres; 20,186 acres are located on the
Mountain National Forest, 3,711 acres on the Valley National Forest, and the remaining 628 acres are on
private land. The Smokey Fire Recovery Project area consists of 8,588 acres located on the Parasol
Ranger District within the Little Mustard River Watershed, approximately 23 miles southeast of Parasol,
Oregon.
This request applies to treatments for salvage harvest and road maintenance on approximately 3,906 acres
of the 8,588 acres currently being analyzed in the Smokey Fire Recovery Project EIS. These areas were
prioritized based on potential for loss of economic value to the Federal Government through deterioration
of the fire-killed trees.
The Smokey Fire Recovery Project EIS Record of Decision is scheduled for completion in February
2004. Delay of implementation during the appeal period would postpone the start of the proposed
activities until June 2004, with the usual industrial restrictions for fire season and the potential lack of
helicopters due to wildfires, actual logging is anticipated to be delayed well into the winter of 2004. This
will add another summer of checking, further reducing the value of commercial timber products, resulting
in an economic loss of over 1.7 million dollars to the Federal Government. This loss is detailed in the
attachment. By granting Emergency Situation status, we can start implementation this spring and
complete the project before the next summer’s checking begins.
The situation meets the definition of an emergency situation defined at 36 CFR 215.2. I respectfully
request that the Regional Forester make a determination that an emergency situation exists consistent with
36 CFR 215.10 (b) for the project area described herein, and that the critical treatments not be subject to a
stay during the appeal period.
If you have any questions concerning this request, please contact me at (999) 123-4567, or John Smith at
(999) 123-8899.
ROBERTA WAGNER
Forest Supervisor
Enclosure
WO AMENDMENT 1509.12-2007-1
EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
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CHAPTER 10 - NOTICE, COMMENT, AND DECISION
16 - DECISION IMPLEMENTATION AND WAITING PERIODS
(See 36 CFR 215.9 for additional direction.)
Decision implementation timelines may be affected by the appeal decision, including instructions
concerning new information or changed circumstances (36 CFR 215.18(b)(1)).
16.1 - Implementation Timeframes for Appealable Decisions
If no appeal is filed, implementation of the decision may begin on, but not before, the fifth
business day following the close of the appeal filing period (36 CFR 215.9(a)).
If an appeal is filed, implementation may not occur for 15 business days following the date of
appeal disposition. In the event of multiple appeals of the same decision, the date of the
disposition of the last appeal controls the implementation date (36 CFR 215.9(b)).
Projects or activities not subject to appeal (36 CFR 215.12) may be implemented immediately
after publication of the decision documented in a decision notice, or a record of decision after
complying with the requirements in 40 CFR 1506.10(b)(2) (36 CFR 215.9(c)).