WO AMENDMENT 1509.12-2007-1
EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
1509.12_20
Page 1 of 4
FSH 1509.12 - 36 CFR 215 APPEALS HANDBOOK
CHAPTER 20 - APPEAL FILING, CONTENTS, AND TIMING
Table of Contents
21 - EVALUATING WHO MAY FILE AN APPEAL ......................................................... 2
22 - WHERE TO FILE AN APPEAL ............................................................................... 3
23 - APPEAL CONTENT ................................................................................................ 3
24 - APPEAL TIME PERIODS ........................................................................................ 4
24.1 - Paper Copy Appeals ......................................................................................................... 4
24.2 - Electronic Appeals............................................................................................................ 4
WO AMENDMENT 1509.12-2007-1
EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
1509.12_20
Page 2 of 4
FSH 1509.12 - 36 CFR 215 APPEALS HANDBOOK
CHAPTER 20 - APPEAL FILING, CONTENTS, AND TIMING
This chapter provides direction on procedures for appealing a decision covered by Title 36, Code
of Federal Regulations, part 215 (36 CFR part 215) and published in the Federal Register on
June 4, 2003 (68 FR 33581). Decisions subject to appeal are described in detail in 36 CFR
215.11.
21 - EVALUATING WHO MAY FILE AN APPEAL
(See 36 CFR 215.13 for additional direction.)
Individuals and organizations who submit substantive written or oral comments during the
30-day comment period for an environmental assessment (EA) or the comment period for a draft
environmental impact statement (DEIS) may appeal that decision (see sec. 13 for information on
considering comments.) The comments must be submitted during the formal comment period as
published in the legal notice. Comments submitted any other time will be considered but do not
provide eligibility to appeal.
In an ongoing (no decision has been made) National Environmental Policy Act (NEPA) process
where more than one notice and comment period is provided for the same proposed action,
timely substantive comments received during any of the comment periods establish eligibility to
appeal.
If an existing decision is modified, only the portion of the old decision that is changed and
outlined as the new decision is subject to appeal (36 CFR 215.11(b)). Individuals who wish to
appeal the new decision should establish eligibility under either of the following scenarios:
1. If a new notice and comment period is provided (changes to the environmental
document), substantive comments must be timely submitted during the new notice and comment
period (sec. 11.6). Comments submitted on the previous project decision do not provide
eligibility to appeal.
2. If no new notice and comment period is provided (no changes to the environmental
document), eligibility to appeal must have been established during the notice and comment
period for the previous project decision.
For purposes of eligibility to appeal, comments received from authorized representatives of an
organization are considered those of the organization and not the individual (36 CFR
215.6(a)(3)(v) and 215.13(a)). An individual must file their own timely, substantive comments
in order to establish eligibility to appeal as an individual. Individuals and organizations may
participate in more than one appeal of the same decision if 36 CFR 215.13(a) requirements are
met.
WO AMENDMENT 1509.12-2007-1
EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
1509.12_20
Page 3 of 4
FSH 1509.12 - 36 CFR 215 APPEALS HANDBOOK
CHAPTER 20 - APPEAL FILING, CONTENTS, AND TIMING
22 - WHERE TO FILE AN APPEAL
Title 36, Code of Federal Regulations, section 215.7 (36 CFR 215.7) specifies that appeals may
be filed by regular mail, fax, e-mail, hand delivery, express delivery, or messenger service with
the appropriate appeal deciding officer (36 CFR 215.8). There is no specific requirement that the
address given in the legal notice of the decision be the physical address of the appeal deciding
officer. Regions and Forests have the flexibility to decide where appeals should be received.
Therefore, the legal notice of the decision document and document cover letter must be explicitly
clear and consistent as to where to file the appeal. Check with the Regional or Forest appeals
coordinator for local requirements.
Despite clear direction in the legal notice on where to file appeals, some appeals may be
delivered to the wrong Forest Service office. The appeal deciding officer should be flexible and
evaluate whether the appeal was filed in a timely fashion, rather than using the correct delivery
address to guide timeliness. The appeal deciding officer may apply the test of “reasonableness”
prior to dismissal of misdirected appeals.
23 - APPEAL CONTENT
(See 36 CFR 215.14 for additional direction.)
At a minimum, an appeal must contain the following information:
1. Appellant’s name, address, and verification of authorship upon request. In the case of
multiple names, the name of the lead appellant and verification of identity upon request.
2. The name of the project or activity.
3. The name and title of the responsible official.
4. The decision date.
5. Specific change(s) the appellant seeks and rationale for the change(s).
6. Any portion of the decision with which the appellant disagrees.
7. The regulation under which the appeal is being filed when there is an option to file
under either Title 36, Code of Federal Regulations, part 251, subpart C (36 CFR 251, subpart C);
or 36 CFR part 215.
8. How the decision violates law, regulation, policy, or how the responsible official
failed to consider substantive comments.
WO AMENDMENT 1509.12-2007-1
EFFECTIVE DATE: 04/20/2007
DURATION: This amendment is effective until superseded or removed.
1509.12_20
Page 4 of 4
FSH 1509.12 - 36 CFR 215 APPEALS HANDBOOK
CHAPTER 20 - APPEAL FILING, CONTENTS, AND TIMING
24 - APPEAL TIME PERIODS
(See 36 CFR 215.15 for additional direction.)
The appeal rule (36 CFR 215.15) provides detailed requirements for appeal time periods,
processing, and determining evidence of timely filing. Generally, if the appeal deciding officer
is in doubt regarding the timeliness of an appeal, the appeal should be accepted.
24.1 - Paper Copy Appeals
Paper copy appeals usually include correspondence sent through the U.S. Mail, messenger
service or other commercial delivery service, and by fax. To maintain evidence of timely filing
in the appeal record, attach envelopes, fax cover sheets, and other evidence of timely or untimely
filing to the original copy of the appeal. Postmark cancellation dates may be blurred or
otherwise illegible. In those instances, the appeal is usually considered timely if it is received
within the normal range of dates for mail that would have been deemed timely. To avoid mail
misrouting and confusion, inform mailrooms and other office managers of the expected appeal
responses, the importance of date stamping appeals promptly when they are received, and the
requirement of keeping the envelope with the postmark attached to the appeal.
24.2 - Electronic Appeals
Appellants filing electronic appeals should receive an automatic confirmation of receipt;
however, the confirmation is not instantaneous. Therefore, keep appeals in the mailbox for at
least 24 hours so that the computer can generate an automatic, electronic acknowledgement. If
appellants do not receive an automatic confirmation of receipt during this time period, it may be
a configuration problem and should be referred to the end user support center (EUSC) by
telephone at (888)-426-3872. 36 CFR 215.15(c)(3) provides that the appellant is responsible for
ensuring a timely receipt of a submitted appeal.