FISH AND WILDLIFE SERVICE
|To:||OMA Staff and Policy Memorandum File|
|From:||Chief [Marshall P. Jones, Jr]|
|Subject:||Time Limits in the Appeal Process [50 CFR 13.29(b)(2) and (4); 13.29(e)]|
Pending revision of Part 13, an interim policy is necessary to provide
guidance on the subject timeframes. For example, 13.29(b)(2) states
that the applicant's request for reconsideration of a denial " ... must
be received by the issuing office within 45 calendar days of the date of
the notification of the decision." On the other hand, 13.29(e) says, "An
appeal must be submitted within 45 days of the date of the notification
of the decision on the request for reconsideration." These directives conflict
to some extent and can be read in different ways. One says "must be received";
the other says "must be submitted." Does the latter mean actually received,
or only mailed or faxed? Is the time limit in either case 45 days including
the date of the denial letter, or 45 days beginning the day after the date
of that letter? Similarly, 13.29(b)(4) says "...the person ... shall be
given written notice of the need to submit the certification within 15
calendar days." It doesn't say within 15 days from what date.
We must be as flexible as possible in serving the public. At the same time, definite time criteria must be established for the benefit of the public as well as OMA staff. Those criteria must fall within the framework of the existing regulation. Therefore, requests for reconsideration and
appeals of denials will be accepted if they are post-marked or faxed by the 45th day after the date of our letter. Similarly, certifications requested under 13.29(b)(4) will be accepted if post-marked by the 15th day after the date of our letter. There will be a one-day grace period when the 45th (or 15th) day falls on a Sunday or a holiday.
If we receive a letter or phone call from an applicant prior to the deadline stating that he wants to request reconsideration or file an appeal, but will not be able to do so within the 45 days, we do have the ability to grant an extension even though the regulations don't specifically say so. This will be a judgement call, depending on the reason the applicant gives for the delay, and how lengthy the extension would be. You should be as flexible and liberal as possible (within reason). When in doubt, ask your team leader, Branch Chief, or Office Chief. Any agreed upon extension will be confirmed in writing, usually by means of an FL-1.
Any exceptions to this policy can be made only by the Office Chief, after a finding that the applicant has presented convincing evidence of circumstances beyond the applicant's control which prevented either timely submission of the request or a timely request for an extension, or by the Assistant Director, Fish and Wildlife Enhancement, or the Director/Deputy Director.
Finally, effective immediately, pending requests for reconsideration
or appeals will be put in each week's OMA staff notes by the individual
biologist involved. Due dates for Service response will be shown in each
case. Deadline for input of info to the Minicomputer is 3:00pm each Thursday.
Please remember that the Service's timeframe to respond to either a request
for reconsideration or an appeal starts on the date the letter is stamped
in or the date that appears on the top margin of a fax.