[Federal Register Volume 76, Number 196 (Tuesday, October 11, 2011)]
[Proposed Rules]
[Pages 62694-62714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24366]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 212, 214, 215, 218, 222, 228, 241, 251, 254, and 292

RIN 0596--AB45


Appeal of Decisions Relating to Occupancy or Use of National 
Forest System Lands and Resources

AGENCY: USDA, Forest Service.

ACTION: Proposed rule; request for comment.

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SUMMARY: The Forest Service, United States Department of Agriculture 
(USDA), is proposing to update, rename, and relocate the administrative 
appeal regulations governing occupancy or use of National Forest System 
(NFS) lands and resources. The appeal process for decisions related to 
occupancy or use of NFS lands and resources has remained substantially 
unchanged since 1989. The proposed rule simplifies the appeal process, 
shortens the appeal period, and reduces the cost of appeal while still 
providing a fair and deliberate procedure by which eligible individuals 
and entities may obtain administrative review of certain types of 
Forest Service decisions affecting their occupancy or use of NFS lands 
or resources. The proposed rule also relocates the provision entitled 
``Mediation of Term Grazing Permit Disputes'' to a more appropriate 
location in the range management regulations. Finally, conforming 
technical revisions to other parts of the Code of Federal Regulations 
(CFR) affected by this proposed rule are being made.

DATES: Comments must be received in writing by December 12, 2011.

ADDRESSES: Submit comments through the Web site http://www.regulations.gov or mail written comments to Director, Ecosystem 
Management Coordination, Mailstop 1104, Forest Service, USDA, 1400 
Independence Ave, SW., Washington, D.C. 20250-1103. All comments, 
including names and addresses when provided, are placed in the record 
and are available for public inspection and copying. Persons wishing to 
inspect the comments are encouraged to call ahead 202-205-1323 to 
facilitate entry into the building.
    Comments concerning the information collection requirements 
contained in this proposed rule should reference OMB No. 0596-New and 
the docket number, date, and page number of this issue of the Federal 
Register. Comments concerning the information collection requirements 
may be submitted as provided for comments on the proposed rule.

FOR FURTHER INFORMATION CONTACT: Deb Beighley, Assistant Director, 
Appeals and Litigation, Ecosystem Management Coordination staff, 202-
205-1277, or Mike McGee, Appeals Specialist, Ecosystem Management 
Coordination staff, 202-205-1323.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. Background and Need for the Proposed Rule
2. Section-by-Section Analysis of Proposed Rule Changes
3. Conforming Substantive Changes to Other Parts of Title 36 of the 
CFR
4. Conforming Technical Changes to Other Parts of Title 36 of the 
CFR
5. Regulatory Certifications

1. Background and Need for the Proposed Rule

    On January 23, 1989, the Forest Service, USDA adopted a new 
administrative appeal rule at 36 CFR part 251, subpart C (54 FR 3362) 
(the 251 Appeal Rule). The 251 Appeal Rule set procedures for holders 
of or, in some cases, applicants for a written authorization to occupy 
and use NFS lands and resources to appeal certain Forest Service 
decisions with regard to the issuance, approval, or administration of 
the written instrument. The rule established who may appeal, the kinds 
of decisions that can and cannot be appealed, the responsibilities of 
parties to the appeal, and the various timeframes that govern the 
conduct of an appeal. The appeal procedures vary depending on whether 
the decision subject to appeal was made by a District Ranger, Forest or 
Grassland Supervisor, Regional Forester, or the Chief. Except for the 
addition of a section governing mediation of term grazing permit 
disputes in 1999, the 251 Appeal Rule has changed little since its 
adoption in 1989.
    As a result of technological advances, communications improvements, 
and the Agency's experience administering the 251 Appeal Rule for the 
past 20 years, the Forest Service has identified several modifications 
that will simplify the appeal process, shorten the appeal time period, 
and achieve cost savings.
    The proposed rule relocates the 251 Appeal Rule to a new part 214, 
entitled ``Appeal of Decisions Relating to Occupancy or Use of National 
Forest System Lands and Resources.'' Current provisions in the 251 
Appeal Rule will be rewritten or replaced with new provisions, and part 
251, subpart C, will be removed. The proposed rule also moves the 
provision governing mediation of term grazing permit disputes to a new 
subpart D under the range management regulations found at 36 CFR part 
222, since mediation is unique to the range management program and is 
not part of the administrative review process under the 251 Appeal 
Rule.
    The following table provides a crosswalk between the 251 Appeal 
Rule and the proposed rule.

[[Page 62695]]



------------------------------------------------------------------------
   Current 36 CFR part 251, subpart C        Proposed 36 CFR part 214
------------------------------------------------------------------------
Sec.   251.80 Purpose and scope........  Sec.   214.1 Purpose and scope.
Sec.   251.81 Definitions and            Sec.   214.2 Definitions.
 terminology.
Sec.   251.82 Appealable decisions.....  Sec.   214.4 Decisions that are
                                          appealable.
Sec.   251.83 Decisions not appealable.  Sec.   214.5 Decisions that are
                                          not appealable.
Sec.   251.84 Obtaining notice.........  Sec.   214.7 Notice of an
                                          appealable decision.
Sec.   251.85 Election of appeal         Sec.   214.6 Election of appeal
 process.                                 process.
Sec.   251.86 Parties..................  Sec.   214.3 Parties to an
                                          appeal.
Sec.   251.87 Levels of appeal.........  Sec.   214.8 Levels of review.
Sec.   251.88(a) Filing Procedures.....  Sec.   214.9 Appeal content.
Sec.   251.90 Content of notice of
 appeals;.
Sec.   251.88(b), (c) Filing Procedures  Sec.   214.14 (b), (c), (e),
Sec.   251.95 Authority of reviewing      (f), (g) Conduct of an appeal.
 officer;.
No equivalent..........................  Sec.   214.14(a) Method of
                                          filing.
No equivalent..........................  Sec.   214.14(h) Service of
                                          documents.
No equivalent..........................  Sec.   214.14(i) Posting of
                                          Final Decision.
No equivalent..........................  Sec.   214.14(j) Expenses.
Sec.   251.89 Time extensions..........  Sec.   214.14(d) Extensions of
                                          time.
Sec.   251.91 Stays....................  Sec.   214.13 Stays.
Sec.   251.92 Dismissal................  Sec.   214.10 Dismissal of an
                                          appeal.
Sec.   251.93 Resolution of issues.....  Sec.   214.15 Resolution of
                                          issues prior to an appeal
                                          decision.
Sec.   251.94 Responsive statement.....  Sec.   214.12 Responsive
                                          statement and reply.
Sec.   251.96 Intervention.............  Sec.   214.11 Intervention.
Sec.   251.97 Oral presentation........  Sec.   214.16 Oral
                                          presentation.
Sec.   251.98 Appeal record............  Sec.   214.17 Appeal record.
Sec.   251.99 Appeal decision..........  Sec.   214.18 Appeal decision.
Sec.   251.100 Discretionary review....  Sec.   214.19 Procedures for
                                          discretionary review.
Sec.   251.101 Policy in event of        Sec.   214.20 Exhaustion of
 judicial proceedings.                    administrative remedies.
No equivalent..........................  Sec.   214.21 Information
                                          collection requirements.
Sec.   251.102 Applicability and         Sec.   214.22 Applicability and
 effective date.                          effective date.
Sec.   251.103 Mediation of term         Moved to 36 CFR part 222,
 grazing permit disputes.                 subpart D.
------------------------------------------------------------------------

2. Section-by-Section Analysis of Proposed Rule Changes

    Section 214.1 Purpose and scope. This section replaces Sec.  251.80 
and generally describes the objectives of the administrative review 
process outlined in the proposed rule and briefly discusses its key 
features.
    Section 214.1(a) corresponds with Sec.  251.80(b) and explains that 
the purpose of this regulation is to establish a fair and deliberate 
process by which certain individuals and entities may obtain 
administrative review of specific written decisions issued by Forest 
Service officers that affect written authorizations for the occupancy 
or use of NFS lands and resources.
    Section 214.1(b) corresponds with Sec.  251.80(a) and identifies 
who is eligible to appeal, the decisions that are appealable and not 
appealable, the responsibilities of the parties to an appeal, and the 
time periods and procedures that govern the conduct of appeals.
    Section 214.2 Definitions. This section replaces Sec.  251.81 and 
defines technical terms and individuals who have a specific role in the 
administrative review process.
    The proposed rule removes the following seven terms from the 
definitions and terminology section in the 251 Appeal Rule because they 
are not used in the proposed rule: ``Deciding Officer,'' ``Decisions 
regarding a written instrument or authorization to occupy and use 
National Forest System lands,'' ``Forest Service line officer,'' 
``Issuance of a written instrument or authorization,'' ``Notice of 
appeal,'' ``Parties to an appeal,'' and ``Reviewing Officer.''
    The proposed rule adds the following 12 terms to the definitions 
section: ``Appeal Deciding Officer,'' ``Responsible Official,'' 
``Cancellation,'' ``Discretionary Reviewing Officer,'' ``Holder,'' 
``Modification,'' ``Operator,'' ``Prospectus,'' ``Revocation,'' 
``Solicited applicant,'' ``Suspension,'' and ``Termination.''
    ``Deciding Officer'' and ``Reviewing Officer'' in the 251 Appeal 
Rule are replaced by ``Responsible Official'' and ``Appeal Deciding 
Officer,'' respectively, in the proposed rule. ``Responsible Official'' 
refers to the Forest Service employee (generally a line officer) who 
has issued an appealable decision under the proposed rule, and ``Appeal 
Deciding Officer'' refers to the Forest Service employee (also 
generally a line officer) one organizational level above the 
Responsible Official who issues the appeal decision. ``Responsible 
Official'' is used in Forest Service appeal regulations at 36 CFR part 
215 for projects and activities implementing land and resource 
management plans and in Forest Service regulations at 36 CFR part 218, 
which provide a predecisional administrative review process for 
decisions or activities authorized under the Healthy Forests 
Restoration Act, to denote the individual authorized to issue a 
decision that is subject to the objection process. For consistency, the 
Agency is proposing to use the same definition for ``Responsible 
Official'' in parts 214, 215, and 218. ``Appeal Deciding Officer'' is 
used in Forest Service appeal regulations at 36 CFR part 215 to refer 
to the individual responsible for issuing an appeal decision. For 
consistency, the Agency is proposing to use the same definition for 
``Appeal Deciding Officer'' in parts 214 and 215. Additionally, the 
Agency is proposing to use the same definitions for ``Appeal,'' 
``Appeal record,'' and ``Appellant'' in parts 214 and 215.
    Another term from the 251 Appeal Rule, ``Notice of appeal,'' is 
replaced by the term ``Appeal'' in the proposed rule and refers to the 
document filed by a holder, operator, or solicited applicant in which 
relief is sought from an appealable decision. This term minimizes the 
potential for confusion that parties to an appeal experienced with the 
term ``notice of appeal,'' which could be interpreted either as the 
Forest Service's notification that an appealable decision had been 
issued or the holder's request for an appeal of a Forest Service 
decision.
    The term ``written instrument or authorization'' in the 251 Appeal 
Rule

[[Page 62696]]

is renamed ``written authorization,'' and the definition is modified in 
the proposed rule.
    Several definitions are adopted from other Forest Service 
regulations, including ``cancellation'' from Sec.  222.1; 
``revocation'' from Sec.  251.51, and ``termination'' from Sec.  
251.51.
    Seven terms are retained from the 251 Appeal Rule, including 
``Appeal,'' ``Appeal decision,'' ``Appeal record,'' ``Appellant,'' 
``Intervenor,'' ``Oral presentation,'' and ``Responsive statement.'' 
The Agency has revised some of the definitions for these terms, but has 
retained their overall meaning in the proposed rule.
    The following terms are defined in the proposed rule:
    Appeal. A document filed with an Appeal Deciding Officer in which 
an individual or entity seeks review of a Forest Service decision under 
this proposed rule.
    Appeal Deciding Officer. The Forest Service employee who is one 
organizational level above the Responsible Official and who is 
authorized to issue an appeal decision under the proposed rule. This 
term replaces ``Reviewing Officer'' in Sec.  251.81 and is consistent 
with terminology in other Forest Service appeal regulations, such as 36 
CFR part 215.
    Appeal decision. The final written decision issued by an Appeal 
Deciding Officer on an appeal filed under the proposed rule which 
affirms or reverses the Responsible Official's appealable decision in 
whole or in part, explains the basis for the decision, and provides 
additional instructions to the parties as necessary. This change 
simplifies the corresponding definition found in the 251 Appeal Rule.
    Appeal record. The documentation and other information filed with 
the Appeal Deciding Officer by the parties to the appeal within the 
relevant time period established in Sec.  214.17 and upon which review 
of an appeal is conducted.
    Appellant. An individual or entity that has filed an appeal under 
this proposed rule.
    Cancellation. The invalidation, in whole or in part, of a term 
grazing permit or an instrument for the disposal of mineral materials, 
consistent with use of that term in other Forest Service regulations, 
such as 36 CFR part 222. This definition addresses a type of decision 
that is appealable under the proposed rule.
    Discretionary Reviewing Officer. The USDA or Forest Service 
employee one organizational level above the Appeal Deciding Officer who 
is authorized to review an appeal decision or certain decisions of the 
Chief under the proposed rule. This definition clarifies the 
distinction between the Appeal Deciding Officer who reviews appealable 
decisions and the Discretionary Reviewing Officer who reviews appeal 
decisions or Chief's decisions.
    Holder. An individual or entity that holds a valid written 
authorization to occupy or use NFS lands or resources. The Agency is 
proposing a corresponding revision to the definition for ``holder'' in 
36 CFR part 251, subpart B, governing special use authorizations.
    Intervenor. An individual or entity whose request to intervene has 
been granted by the Appeal Deciding Officer.
    Modification. A Responsible Official's written revision of the 
terms and conditions of a written authorization.
    Operator. An individual or entity conducting or proposing to 
conduct mineral operations. This definition specifically identifies one 
class of individuals that may participate in an appeal under the 
proposed rule.
    Oral presentation. An informal meeting presided over by the Appeal 
Deciding Officer during which parties to an appeal may present 
information in support of their position.
    Prospectus. A public announcement published by the Forest Service 
soliciting competitive applications for a written authorization.
    Responsible Official. A Forest Service employee who is authorized 
to issue a decision that may be appealed under this proposed rule. This 
term is the same as the one used in 36 CFR parts 215 and 218 to 
describe the individual who issues a decision that is subject to review 
under the appeals or predecisional administrative review process in 
those rules. The term ``Responsible Official'' replaces the term 
``Deciding Officer'' in the 251 Appeal Rule.
    Responsive statement. The document filed by the Responsible 
Official with the Appeal Deciding Officer that addresses the issues 
raised and relief requested in an appeal.
    Revocation. The cessation, in whole or in part, of a written 
authorization, other than a term grazing permit or an instrument for 
the disposal of mineral materials, by action of a Responsible Official 
before the end of the specified period of occupancy or use. This 
definition addresses a type of decision that is appealable under the 
proposed rule.
    Solicited applicant. An individual or entity that has submitted a 
competitive application in response to a prospectus.
    Suspension. A temporary revocation or cancellation of a written 
authorization.
    Termination. The cessation of a written authorization by operation 
of law or by operation of a fixed or agreed-upon condition, event, or 
time as specified in the written authorization, which does not require 
action by a Responsible Official. Examples of termination include the 
expiration of the authorized term; change in ownership or control of 
the authorized improvements; or change in ownership or control of the 
holder of the authorization. For consistency, the definition for 
``termination'' in 36 CFR part 251, subpart B, is being revised to 
match the definition for ``termination'' in the proposed rule. This 
definition is included to distinguish revocation and cancellation, 
which involve cessation of a written authorization due to action of the 
Responsible Official and are appealable, from termination, which 
involves cessation of a written authorization without action of the 
Responsible Official and is not appealable.
    Written authorization. A term grazing permit, plan of operations, 
special use authorization, mineral material contract or permit, or 
other type of written instrument issued by the Forest Service or a 
lease or permit for leasable minerals issued by the U.S. Department of 
the Interior that authorizes occupancy or use of NFS lands or resources 
in accordance with the terms and conditions in the instrument. The 
Agency is proposing a corresponding change to the definition for 
``special use authorization'' in 36 CFR part 251, subpart B, to 
expressly state that a special use authorization must be in writing.
    Section 214.3 Parties to an appeal. This section replaces Sec.  
251.86 and states that only holders, operators, solicited applicants, 
intervenors, and the Responsible Official may be considered a party to 
an appeal under the proposed rule. The parties eligible to appeal are 
the same under the proposed rule and the 251 Appeal Rule, except that 
operators have been added as an eligible party in the proposed rule, 
and solicited applicants who have been offered a special use 
authorization and who object to its terms and conditions have been 
removed as an eligible party from the proposed rule. The Agency does 
not believe it is appropriate to allow solicited applicants to appeal 
terms and conditions in special use authorizations because these 
provisions are standardized nationally and have been approved by the 
Office of Management and Budget (OMB) as part of

[[Page 62697]]

information collection requirements under the Paperwork Reduction Act.
    Section 214.4 Decisions that are appealable. Replaces Sec.  251.82 
and enumerates the types of decisions that are appealable under the 
proposed rule.
    When Sec.  214.4 is read together with Sec.  214.5, the structure 
of the proposed rule states that a decision is not appealable unless it 
is expressly set forth in Sec.  214.4. As a result, the list of 
appealable decisions in Sec.  214.4 is considerably more extensive than 
the list of appealable decisions in Sec.  251.82. Enumerating all types 
of appealable decisions will minimize potential confusion regarding 
whether a decision is appealable.
    Section 214.4 is subdivided based on the type of written 
authorization. Paragraph (a) lists appealable decisions involving the 
administration of livestock grazing; paragraph (b) lists appealable 
decisions involving the administration of mineral exploration and 
development activities; paragraph (c) lists appealable decisions 
involving the administration of special uses; and paragraph (d) lists 
appealable decisions associated with other land uses.
    Paragraph (a) enumerates the following four types of appealable 
decisions involving the administration of livestock grazing activities:
    (1) Modification of term grazing permits issued under 36 CFR part 
222, subpart A. Issuance of annual operating instructions does not 
constitute a permit modification and is not an appealable decision;
    (2) Suspension or cancellation, other than cancellation resulting 
from the permittee's waiver to the United States, of term grazing 
permits issued under 36 CFR part 222, subpart A;
    (3) Denial of reauthorization of livestock grazing under a term 
grazing permit if the holder files an application for a new permit 
before the existing permit expires; and
    (4) Denial of a term grazing permit issued under 36 CFR part 222, 
subpart C, to a solicited applicant.
    Paragraph (b) enumerates the following 9 types of appealable 
decisions involving the administration of mineral exploration and 
development activities:
    (1) Approval or denial of an initial, modified, or supplemental 
plan of operations or operating plan; requirement of an increase in 
bond coverage; requirement of measures to avoid irreparable injury, 
loss, or damage to surface resources pending modification of a plan of 
operations or operating plan; or issuance of a notice of noncompliance 
pursuant to 36 CFR part 228, subpart A or D, or part 292, subpart D, F, 
or G;
    (2) Approval or denial of an operating plan, issuance of a notice 
of noncompliance, extension, suspension, or cancellation, other than 
cancellation by mutual agreement, for contracts, permits, or 
prospecting permits for mineral materials issued under 36 CFR part 228, 
subpart C;
    (3) Approval or denial of a surface use plan of operations, request 
to supplement a surface use plan of operations, suspension of oil and 
gas operations, or issuance of a notice of noncompliance pursuant to 36 
CFR part 228, subpart E;
    (4) Consent or denial of consent to the U.S. Department of the 
Interior's administration of previously issued leases or permits for 
leasable minerals other than oil and gas resources;
    (5) Suspension, or revocation of an operating plan for Federal 
lands within the Sawtooth National Recreation Area pursuant to 36 CFR 
part 292, subpart D;
    (6) Suspension of locatable mineral operations on NFS lands within 
the Hells Canyon National Recreation Area pursuant to 36 CFR part 292, 
subpart F;
    (7) Suspension of locatable mineral operations on NFS lands within 
the Smith River National Recreation Area or approval of an initial or 
amended operating plan for exercise of outstanding mineral rights on 
NFS lands within the Smith River National Recreation Area pursuant to 
36 CFR part 292, subpart G;
    (8) Except as provided in paragraph (7), determinations of the 
acceptability of an initial or amended operating plan for exercise of 
outstanding mineral rights on NFS lands; and
    (9) Determinations of the acceptability of an initial or amended 
operating plan for exercise of reserved mineral rights located on NFS 
lands.
    Paragraph (c) enumerates the following 5 types of appealable 
special uses decisions:
    (1) Modification, suspension, or revocation of a special use 
authorization, other than acceptance of an operating plan, including:
    (i) A special use authorization issued under 36 CFR part 251, 
subpart B or D, other than modification, suspension, or revocation of a 
noncommercial group use permit, suspension or revocation of an easement 
issued pursuant to 36 CFR 251.53(e) or 251.53(l), or revocation with 
the consent of the holder;
    (ii) A special use authorization for ingress and egress to 
intermingled and adjacent private lands across NFS lands issued under 
36 CFR part 212, subpart A;
    (iii) A special use authorization issued under 36 CFR part 251, 
subpart A, that authorizes the exercise of rights reserved in 
conveyances to the United States;
    (iv) A permit and occupancy agreement issued under 36 CFR 213.3 for 
national grasslands and other lands administered under Title III of the 
Bankhead-Jones Farm Tenant Act;
    (v) A permit issued under 36 CFR 293.13 for access to valid 
occupancies entirely within a wilderness in the NFS;
    (vi) A permit issued under the Archaeological Resources Protection 
Act of 1979 and 36 CFR part 296 for excavation or removal of 
archaeological resources; and
    (vii) A special use authorization governing surface use associated 
with the exercise of outstanding mineral rights;
    (2) Denial of a special use authorization to a solicited applicant;
    (3) Implementation of new land use fees for a special use 
authorization, other than:
    (i) Revision or replacement of a land use fee system or schedule 
that is implemented through public notice and comment; and
    (ii) Annual land use fee adjustments based on an inflation factor 
that are calculated under an established fee system or schedule in 
accordance with the terms and conditions of a written authorization;
    (4) Assignment of a performance rating to holders of outfitting and 
guiding or campground concession permits that affects reissuance or 
extension of a special use authorization; or
    (5) Denial of renewal of a special use authorization if it 
specifically provides for renewal and if the holder requests renewal of 
the authorization before it expires.
    Paragraph (d) enumerates one additional type of appealable decision 
associated with other land uses: denial or revocation of a 
certification of compliance issued under 36 CFR part 292, subpart C, 
related to the use, subdivision, and development of privately owned 
property within the boundaries of the Sawtooth National Recreation 
Area.
    Section 214.5 Decisions that are not appealable. This section 
replaces Sec.  251.83. Contrary to the 251 Appeal Rule, which 
enumerates 15 types of decisions that are not appealable, the proposed 
rule simply states that any decision not expressly enumerated in Sec.  
214.4 is not appealable. This is an easier way to distinguish 
appealable decisions from those decisions that may not be appealed, to 
ensure coverage of

[[Page 62698]]

all decisions and to eliminate guesswork that occurs when a decision is 
not included in either an appealable decision list or a non-appealable 
decision list.
    Section 214.6 Election of appeal process. This section replaces 
Sec.  251.85. This section generally corresponds with and merges Sec.  
251.85(a) and (b) and explains that some decisions that are appealable 
under this part may also be appealable under other Forest Service 
appeal procedures in different parts of the CFR. The proposed rule 
states that where multiple appeal options exist, a holder, operator, or 
solicited applicant must elect one of the appeal procedures and in so 
doing forego the opportunity to pursue an appeal under the other appeal 
procedures. References to specific parts of the CFR have been removed 
in this section to ensure that this election requirement applies to all 
administrative review procedures offered by the Agency. The proposed 
rule omits the statement in Sec.  251.85(b) that an appellant who has 
forfeited the right to appeal under part 217 may still intervene 
pursuant to that part. This statement was eliminated because 36 CFR 
part 217 is no longer in the CFR. The proposed rule also makes 
conforming changes to the election of appeals provision in the 
administrative appeal regulations at 36 CFR part 215.
    Section 214.7 Notice of an appealable decision. This section 
replaces Sec.  251.84 and describes the mechanism by which the 
Responsible Official notifies a holder, operator, or solicited 
applicant that an appealable decision has been issued concerning either 
a written authorization possessed by a holder or operator or a written 
authorization for which a competitive application has been submitted by 
a solicited applicant.
    Section 214.7(a) generally corresponds with Sec.  251.84(a) and 
requires the Responsible Official to include language in a written 
decision which informs the affected holder, operator, or solicited 
applicants whether an opportunity to appeal exists. Unlike the 251 
Appeal Rule, which contains a provision requiring the Responsible 
Official to notify ``holders of like instruments'' of the decision if 
these holders had previously made a written request for that 
information, the proposed rule limits the Responsible Official's notice 
obligation to the party or parties directly affected by the decision. 
As a result, under Sec.  214.11, it is the responsibility of 
individuals or entities who are not directly affected by the appealable 
decision to obtain a copy of the decision and to evaluate whether to 
request participation as an intervenor.
    Section 214.7(b) generally corresponds with Sec.  251.84(a) and (b) 
and specifies what items must be addressed in the notice. For example, 
the proposed rule requires the notice to the affected holder, operator, 
or solicited applicant to include:
     The rule or rules under which an appeal may be filed;
     The contents of an appeal;
     The name and mailing address of the Appeal Deciding 
Officer;
     The filing deadline;
     An expression of the Responsible Official's willingness to 
meet to discuss the decision; and
     Where applicable, the opportunity to request mediation of 
certain term grazing permit disputes.
    The first two bulleted items above are new and provide the affected 
holder, operator, or solicited applicant with a better understanding of 
appeal options and what must be included in an appeal for further 
review by the Appeal Deciding Officer. The inclusion of this 
information in the notice of an appealable decision will expedite the 
appeal process and may reduce the number of appeals that are dismissed 
based on the filing of an inadequate appeal.
    Section 214.7(c) does not have a counterpart in the 251 Appeal Rule 
and simply requires the Responsible Official to notify the affected 
holder, operator, or solicited applicant if the decision is not 
appealable. As the proposed rule provides for notice of appealable 
decisions, the Forest Service considers it appropriate to inform 
affected holders, operators, and solicited applicants of decisions that 
are not appealable. This approach should lead to greater understanding 
of the administrative review process and reduce the number of appeals 
that will be dismissed because the decisions are not appealable.
    Section 214.8 Levels of review. This section replaces Sec.  251.87 
and describes the administrative review procedures applicable to 
appealable decisions. Unlike the 251 Appeal Rule, which establishes 
different review procedures depending on whether the appealable 
decision is made by a District Ranger, Forest or Grassland Supervisor, 
or Regional Forester, Sec.  214.8 establishes the same review 
procedures regardless of the position of the Responsible Official who 
issued the appealable decision.
    Specifically, Sec.  251.87(b) and (c) provides for two levels of 
appeal for appealable decisions made by District Rangers, but only one 
level of appeal and discretionary review for appealable decisions made 
by Forest Supervisors and Regional Foresters. Proposed Sec.  
214.8(a)(1) would provide for one level of appeal and discretionary 
review for appealable decisions made by District Rangers, Forest or 
Grassland Supervisors, and Regional Foresters. Substituting 
discretionary review for the second level of appeal for appealable 
decisions made by District Rangers simplifies and expedites the appeals 
process for the Agency and the public.
    Similar to Sec.  251.87(a) of the 251 Appeal Rule, proposed Sec.  
214.8(a)(2) and (b)(2) states that decisions made by the Chief are not 
appealable, but are eligible for discretionary review by the Under 
Secretary for Natural Resources and Environment if they fall into one 
of the categories of decisions listed in Sec.  214.4.
    There is no counterpart in the proposed rule to Sec.  251.87(d), 
which provides for discretionary review of certain dismissal decisions 
because the Agency does not believe that further administrative review 
of dismissal decisions, which are based primarily on procedural 
grounds, is an efficient use of limited agency resources.
    Section 214.9 Appeal content. This section replaces Sec.  251.90 
and enumerates general and specific requirements that must be contained 
in an appeal, as well as the timeframes for filing an appeal.
    While many of the general requirements in Sec.  214.9(a) are 
identical to the items that must be included in a notice of appeal 
under Sec.  251.90(b), this section additionally requires an appellant 
to include an e-mail address, if any; any documents and other 
information upon which the appeal relies; and a signature and date. 
This section also requires submission of a copy of the decision being 
appealed, rather than a ``brief description'' and date of the decision 
as in the 251 Appeal Rule. Further, like the 251 Appeal Rule, the 
proposed rule requires an appeal to include a reference to the title or 
type of written authorization that is the subject of the appealable 
decision and the date of application for or issuance of the 
authorization. However, unlike the 251 Appeal Rule, the proposed rule 
does not require an appeal to include the name of the ``responsible 
Forest Service officer.''
    Section 214.9(b) generally corresponds with Sec.  251.90(c) and 
identifies additional items that may be included in an appeal depending 
on the nature of the dispute and the relief being sought by the 
appellant. In contrast to Sec.  251.90(c), this section requires 
appellants to include in an appeal a request for an oral presentation, 
a request for a stay, and, where applicable, a request for

[[Page 62699]]

mediation of term grazing permit disputes. Except for grazing 
mediation, these requests may be made at any time under the 251 Appeal 
Rule prior to the closing of the appeal record. This proposed change 
shortens the appeal timeline.
    Section 214.9(c) replaces Sec.  251.88(a) and establishes the time 
frame for filing an appeal. Unlike the 251 Appeal Rule, which 
establishes 45 days from the date of the notice of the appealable 
decision as the time within which an appeal must be filed, the proposed 
rule shortens the timeframe to 30 days with one exception. The 
exception is the National Forest Roads and Trails Act of 1964, 16 
U.S.C. 532 et seq., which states that appeals of decisions to revoke an 
easement based on abandonment must be filed within 60 days of the 
revocation decision. The Agency has otherwise shortened the timeframe 
to file an appeal in recognition of improvements in information and 
communications technology that have taken place over the last 20 years, 
which allow for a more expeditious handling of appeals.
    Section 214.10 Dismissal of an appeal. This section replaces Sec.  
251.92 and enumerates the same eight grounds for dismissal of an appeal 
as currently identified in the 251 Appeal Rule.
    Section 214.10(b) corresponds with Sec.  251.92(b) and requires the 
Appeal Deciding Officer to give written notice of and explain a 
decision to dismiss an appeal.
    Unlike Sec.  251.92(c), which allows for discretionary review of 
certain dismissal decisions, the proposed rule does not allow 
discretionary review of any dismissal decisions because discretionary 
review of these decisions presents an unnecessary administrative 
burden.
    Section 214.11 Intervention. This section replaces Sec.  251.96 and 
sets forth the procedures for participation in an appeal by those whose 
interests may be affected by the appeal but who do not have standing to 
appeal. Section 214.11(a)(1) generally corresponds with Sec.  251.96(b) 
and describes the criteria under which an individual is eligible to 
intervene in an appeal. Unlike the 251 Appeal Rule, which describes an 
intervenor as ``an applicant for or a holder of a written instrument 
issued by the Forest Service that is the subject of or affected by the 
appeal,'' the proposed rule describes an intervenor more simply as a 
holder, operator, or solicited applicant who claims an interest 
relating to the subject matter of the decision being appealed and is 
situated so that disposition of the appeal may impair that interest. 
For example, the holder of a written authorization that was issued 
through a competitive process would be eligible to intervene in an 
appeal filed by an unsuccessful solicited applicant for the 
authorization.
    Section 214.11(a)(2) generally corresponds with Sec.  251.96(a) and 
requires those wishing to intervene to file a written request with the 
Appeal Deciding Officer. However, unlike the 251 Appeal Rule, which 
allows intervention requests to be filed at any time before the appeal 
record is closed, the proposed rule requires the intervention request 
to be filed within 15 days of the filing of an appeal. Setting a 
deadline early in the appeal process for filing intervention requests 
facilitates the orderly and expeditious handling of appeals.
    Section 214.11(b) generally corresponds with Sec.  251.96(b)(1) and 
(b)(3) and describes the process for requesting intervention in an 
appeal. In contrast to Sec.  251.96(b)(3), which merely requires the 
requesting party to show how the decision being appealed would directly 
affect that party's interests, Sec.  214.11(b) requires the party 
requesting intervention to include, at a minimum, a description of the 
requester's interest in the appeal; how disposition of the appeal may 
impair that interest; the factual and legal allegations in the appeal 
with which the requester agrees or disagrees; additional facts and 
issues that are not raised in the appeal that the requester believes 
are relevant and should be considered; the relief sought by the 
requester, particularly as it differs from the relief sought by the 
appellant; a response, where applicable, to the appellant's request for 
a stay, an oral presentation, or mediation of a term grazing permit 
dispute; and the requester's signature and date.
    Section 214.11(c) is new and allows the appellant and the 
Responsible Official to submit a written response within 5 days of the 
filing of the intervention request. Section 214.11(d) generally 
corresponds with Sec.  251.96(c) with respect to issuance of a decision 
on an intervention request. Unlike the 251 Appeal Rule, which does not 
include a timeframe for issuing a decision, the proposed rule requires 
the Appeal Deciding Officer to decide whether to grant an intervention 
request within 5 days after a response is due.
    Section 214.11 does not include language similar to Sec.  
251.96(d), which states that intervention decisions are not appealable, 
because this statement is unnecessary and duplicative given that the 
complete list of appealable decisions is specified in Sec.  214.4. 
Section 214.11 also does not include language similar to Sec.  
251.96(e), which requires service of intervention documents on all 
parties to the appeal, because Sec.  214.15(h) of the proposed rule 
establishes broad service requirements for all documents filed in an 
appeal, including those related to a proposed intervention.
    Section 214.12 Responsive statement and reply. This section 
replaces Sec.  251.94. Section 214.12(a) generally corresponds with 
Sec.  251.94(a) and (b). In contrast to Sec.  251.94(b), which provides 
for a responsive statement to be filed within 30 days of receipt of the 
appeal or conclusion of mediation of a term grazing permit dispute, 
Sec.  214.12(a) provides for a responsive statement to be filed within 
20 days of receipt of the appeal or the unsuccessful conclusion of 
mediation, whichever is later.
    Section 214.12(b) generally corresponds with Sec.  251.94(c) with 
respect to filing a reply to a responsive statement, but gives an 
appellant (and intervenors where appropriate) 10 days instead of 20 
days to file a reply. This approach will provide the appellant (and 
intervenors) with an opportunity to address contentions in the 
responsive statement, not to restate the entire appeal (or 
intervention). This change will shorten the appeal process, yet still 
provide the appellant (and intervenors) with sufficient time to file a 
meaningful reply.
    Section 214.13 Stays. This section replaces Sec.  251.91 and 
addresses postponement of implementation of an appealable decision 
until the appeal has concluded. Unlike the 251 Appeal Rule, the 
proposed rule establishes two categories of stays, authorized and 
automatic, establishes the procedures for obtaining an authorized stay, 
and enumerates the types of decisions that are subject to an automatic 
stay.
    Section 214.13(a) generally corresponds with Sec.  251.91(a) and 
provides that decisions under appeal shall be implemented during the 
administrative review process unless a stay has been granted or an 
automatic stay has gone into effect.
    Section 214.13(b) generally corresponds with Sec.  251.91(b) 
through (g) and addresses authorized stays, which are granted at the 
discretion of the Appeal Deciding Officer. Unlike Sec.  251.91(b), 
which allows for a stay request to be filed at any time during the 
appeal period, Sec.  214.13(b)(1) requires an appellant to include a 
request for stay in the appeal. In contrast to Sec.  251.91(d), which 
allows a response to a stay request to be filed by the Deciding Officer 
and other parties but does not specify when or how the response must be 
filed, Sec.  214.13(b)(2) provides for the Responsible Official to 
include a response to a stay request in the responsive statement and 
for a

[[Page 62700]]

prospective intervenor to include a response to a stay request in the 
intervention request. This approach simplifies and enhances the 
efficiency of the appeal process. Section 214.13(b)(3) requires the 
Appeal Deciding Officer to issue a decision on the stay request within 
10 days after a responsive statement or an intervention request is 
filed, whichever is later. The Appeal Deciding Officer is also required 
to provide a brief explanation of the basis for the decision to grant 
or deny the stay request.
    Section 214.13(c) is new and enumerates three types of decisions 
that are automatically stayed. The first category includes decisions to 
issue a written authorization pursuant to a prospectus. In this 
circumstance, a concession permit is being issued through a competitive 
process. Issuance of the permit needs to be stayed pending appeal, so 
as to avoid revocation of the permit if the Appeal Deciding Officer 
determines that the selection decision is improper. The second category 
includes decisions to recalculate revenue-based land use fees for a 
special use authorization pursuant to an audit. In this circumstance, 
delaying implementation of the revised fee would obviate the need to 
make a refund if the fee calculation is erroneous. The third category 
includes decisions to cancel or suspend a term grazing permit for which 
mediation is available and has been requested.
    Section 214.13(d) specifies that authorized and automatic stays 
remain in effect until a final administrative decision is issued in the 
appeal, unless they have been modified or lifted pursuant to Sec.  
214.13(e), or in the case of mediation, for the duration of that 
process. This provision simplifies and clarifies the current regulation 
governing duration of stays at Sec.  251.91(h), which provides that 
stays remain in effect ``for the 15-day period for determining 
discretionary review,'' but fails to address the status of the stay 
beyond that time.
    Section 214.13(e) generally corresponds with Sec.  251.91(j). In 
contrast to Sec.  251.91(j), which allows an Appeal Deciding Officer to 
change a stay in accordance with its terms or changed circumstances, 
this section authorizes an Appeal Deciding Officer or Discretionary 
Reviewing Officer to modify or lift an authorized stay based upon a 
written request by a party (parties other than the appellant may seek 
to modify a stay) who demonstrates that the circumstances have changed 
since the stay was granted and that it is unduly burdensome or unfair 
to maintain the stay. Section 214.13(e) obviates the need for a 
separate section similar to Sec.  251.100(e), which allows for a stay 
to be extended by a reviewing officer during discretionary review. This 
provision is unnecessary under the proposed rule because stays will 
remain in effect, unless modified or lifted, until the final 
administrative decision is made, including issuance of a discretionary 
review decision.
    Section 214.13 does not include language similar to Sec.  
251.91(k), which provides that most decisions to grant, deny, lift, or 
modify a stay are not subject to appeal or discretionary review. This 
provision is unnecessary given the omission of this type of decision 
from the list of appealable decisions proposed in Sec.  214.4. As a 
result, decisions on stay requests are not appealable under Sec.  
214.5.
    Section 214.14 Conduct of an appeal. This section replaces 
Sec. Sec.  251.88(b), 251.88(c), and 251.95. This section consolidates 
general procedures for the conduct of an appeal currently found at 
Sec. Sec.  251.91, 251.94(b) and (c), 251.96(e), 251.99(e), and 
251.100(g).
    Section 214.14(a), which is new, provides that appeals may be filed 
in person or by courier, by mail or private delivery service, by 
facsimile, or by electronic mail.
    Section 214.14(b) corresponds generally with Sec.  251.88(b) and 
states that it is the appellant's responsibility to file an appeal 
within the relevant time period and that questions regarding timeliness 
will be determined by the Appeal Deciding Officer based on specific 
criteria that vary depending on the filing method used. For example, 
for appeal documents sent via the U.S. Postal Service (USPS), 
timeliness will be determined by the postmark. Timeliness 
determinations for appeal documents sent via a private carrier like 
Federal Express or the United Parcel Service will be determined by the 
date of receipt by the private carrier. This section clarifies that 
timeliness determinations will be based on the date when a document is 
received for shipment regardless of whether the carrier is public, 
i.e., USPS, or private. The 5 business day delay is to allow sufficient 
time for any appeal filed through the U.S. Postal Service or private 
carrier (i.e., postmarked or date of receipt before the end of the 
appeal filing period) to be received by the reviewing officer. The 
proposed rule amends similar sections regarding timeliness 
determinations in 36 CFR parts 215 and 218 to conform with Sec.  
214.14(b).
    As in Sec.  251.88(c)(2), Sec.  214.14(c) provides that time 
periods begin on the day after the event or action triggering the time 
period and that all time periods are computed using calendar days 
(including Saturdays, Sundays, and Federal holidays). However, if a 
time period expires on a Saturday, Sunday, or Federal holiday, the 
expiration date is extended to the end of the next Federal business 
day.
    Section 214.14(d) replaces Sec.  251.89 and specifies which time 
periods in the proposed rule may be extended by the Appeal Deciding 
Officer. Section 214.14(d)(1) corresponds to Sec.  251.89(b) and states 
that the parties to an appeal are responsible for meeting the time 
periods specified, unless an extension of time has been granted by the 
Appeal Deciding Officer. Contrary to the 251 Appeal Rule, which is 
silent on this matter, Sec.  214.14(d)(1) also specifies that extension 
requests by an appellant, intervenor, or Responsible Official must be 
in writing and must explain the rationale for the request. These 
requirements improve accountability and prevent unreasonable and 
unexplained delays in the processing of appeal decisions.
    Section 214.14(d)(2) corresponds with Sec.  251.89(a) and 
enumerates the filing deadlines that may not be extended. Unlike the 
251 Appeal Rule, which prohibits extending only the time period for 
filing an appeal, the proposed rule also would prohibit extending the 
time period for deciding whether to conduct discretionary review and 
for issuing a discretionary review decision.
    Section 214.14(d)(3) corresponds with Sec.  251.89(b) and provides 
that all other time periods may be extended upon a finding of good 
cause for the extension by the Appeal Deciding Officer. An example of 
good cause might include the occurrence of severe and unanticipated 
natural events or other extenuating circumstances that make compliance 
with the filing deadline extremely burdensome. This section also states 
that extensions will automatically be granted if the parties jointly 
represent that they are working together in good faith to resolve the 
dispute and need additional time to reach a mutually agreeable 
resolution.
    Section 214.14(d)(4) corresponds with Sec.  251.89(b) and requires 
the Appeal Deciding Officer to issue a decision granting or denying the 
extension within 10 days after a request has been filed.
    Section 214.14(d)(5) is new and states that the Appeal Deciding 
Officer should avoid granting extensions which add more than 60 days to 
the appeal process.
    Taken as a whole, Sec.  214.14(d) reflects the Agency's 
understanding that some extensions of filing deadlines may be necessary 
and perhaps even

[[Page 62701]]

unavoidable and provides guidance to the Appeal Deciding Officer on 
when and for how long to grant extensions.
    Section 214.14(e) corresponds with Sec.  251.95(a) and authorizes 
the Appeal Deciding Officer to issue procedural orders governing the 
appeal process.
    Section 214.14(f) corresponds with Sec.  251.95(b) and authorizes 
the Appeal Deciding Officer to consolidate appeals of the same or 
similar decisions involving common issues of fact and law. This section 
of the proposed rule also authorizes the Appeal Deciding Officer to 
issue one decision for multiple appeals that involve common issues of 
fact and law. There is no counterpart in the proposed rule to Sec.  
251.95(a)(3) and Sec.  251.95(b)(1), which state, respectively, that 
decisions involving procedural orders or consolidation decisions are 
not subject to appeal and further review. These provisions are 
unnecessary in light of Sec.  214.4, which does not include these 
decisions in the list of appealable decisions. Consequently, decisions 
involving procedural orders and consolidation decisions are not 
appealable under the proposed rule.
    Section 214.14(g) corresponds with Sec.  251.95(c) and authorizes 
the Appeal Deciding Officer to request additional information from the 
parties to clarify appeal issues and to extend appeal time periods as 
necessary to allow for submission of the requested information and to 
give the other parties an opportunity to review and comment on these 
submissions.
    Section 214.14(h) requires all parties to send each other copies of 
all appeal documents when they are filed with the Appeal Deciding 
Officer. This section consolidates several sections of the 251 Appeal 
Rule that use slightly different terminology but essentially require 
one party to serve documents related to an appeal on all other parties 
involved in the appeal. Relocating and consolidating these sections 
into a single provision simplifies procedures, minimizes the potential 
for confusion, and enhances consistency of administration. This section 
also makes each party responsible for identifying other parties to the 
appeal and allows each party to contact the Appeal Deciding Officer for 
other parties' names and addresses.
    Section 214.14(i) is new and requires the Forest Service to post 
electronic versions of all appeal decisions and discretionary review 
decisions on the Web site of the national forest or national grassland 
or region that issued the appealable decision or on the Web site of the 
Washington Office for Chief's decisions. These postings are required 
under the Electronic Freedom of Information Act of 1996 and a 1999 
settlement agreement in Wyoming Outdoor Council v. United States 
Department of the Interior, No. 98-220 (D. Wyo.), in which the Forest 
Service was a party.
    Section 214.14(j) is new and promulgates the Agency's current 
practice to require each party to bear its own expenses in an appeal, 
including costs associated with preparing the appeal, participating in 
and obtaining a transcript of the oral presentation, obtaining 
information regarding the appeal, and retaining professional 
consultants or counsel.
    Section 214.15 Resolution of issues prior to an appeal decision. 
This section replaces Sec.  251.93. Section 214.15(a) corresponds with 
Sec.  251.93(b) and allows the Responsible Official to discuss an 
appeal with the appellant or other parties to narrow issues, agree on 
facts, and determine whether one or more of the issues (or perhaps the 
entire appeal) could be resolved without the expenditure of time and 
money required to complete the administrative review process.
    Section 214.15(b) corresponds to Sec.  251.93(c) and allows the 
Responsible Official to withdraw an appealable decision, in whole or in 
part, during an appeal to facilitate informal resolution of a dispute. 
The Responsible Official is required to notify the Appeal Deciding 
Officer and the other parties of the withdrawal. The Appeal Deciding 
Officer will dismiss the appeal under Sec.  214.10 if withdrawal of the 
decision eliminates all the issues in dispute in the appeal. The 
proposed rule does not adopt the provision in Sec.  251.93(a), which 
provides for consultation with holders of written instruments prior to 
issuing a written decision. This activity takes place prior to 
initiation of an appeal and is therefore beyond the scope of the 
proposed rule.
    Section 214.16 Oral presentation. This section replaces Sec.  
251.97. Section 214.16(a) states that the purpose of an oral 
presentation is to provide the parties to an appeal with an opportunity 
to present arguments in support of their position to the Appeal 
Deciding Officer. The language in Sec.  251.97(a) regarding the 
informal nature of oral presentations is not included as it does not 
pertain to the purpose of the oral presentation.
    Section 214.16(b) describes the scope of information and argument 
that may be raised in an oral presentation, which generally reflects 
the purpose statement of Sec.  251.97(a). Section 214.16(b) also 
includes a statement allowing new information to be presented in an 
oral presentation only in those cases where it could not have been 
raised earlier in the appeal and where it would be unfair and 
prejudicial to exclude it.
    Contrary to Sec.  251.97(b), which allows an appellant to make a 
request for an oral presentation at any time prior to the closing of 
the appeal record, Sec.  214.9(b)(1) requires appellants to request an 
oral presentation in the appeal. If an appellant requests an oral 
presentation in the appeal, Sec.  214.16(c) requires the Appeal 
Deciding Officer to grant the request, unless the appeal has been 
dismissed under Sec.  214.10. Requiring appellants to request an oral 
presentation in the appeal will facilitate orderly conduct of appeals, 
including scheduling of the oral presentation.
    Section 214.16(d) corresponds with Sec.  251.97(d), which 
authorizes oral presentations only during appeal of a decision, not 
during discretionary review. Section 214.16(e) is new and requires the 
Appeal Deciding Officer to schedule an oral presentation within 10 days 
of the filing of the reply to the responsive statement. This provision 
is intended to promote a more thoughtful discussion of the appeal 
issues in the oral presentation since it will be held shortly after the 
filing of the appeal, responsive statement, and reply. In addition, 
this section expedites the appeal process by eliminating the potential 
for a lengthy delay between the filing of the reply and the oral 
presentation. The second sentence of Sec.  214.16(e) corresponds to 
Sec.  251.97(c) and requires the Appeal Deciding Officer to notify the 
parties of the date, time, and location of and procedures for the oral 
presentation.
    Section 214.16(f) corresponds to the first sentence of Sec.  
251.97(c) and provides that only parties to the appeal may participate 
in the oral presentation and that the oral presentation will be open to 
the public at the discretion of the Appeal Deciding Officer.
    Section 214.16(g) is new and allows for a summary or transcript of 
an oral presentation to be included in the appeal record if it is 
submitted to the Appeal Deciding Officer by a party at the end of the 
oral presentation. A transcript prepared by a certified court reporter 
may be included in the appeal record if it is filed with the Appeal 
Deciding Officer within 10 days after the oral presentation and is paid 
for by those who requested it.
    Section 214.17 Appeal record. This section replaces Sec.  251.98. 
Section 214.17(a) corresponds with Sec.  251.98(a) and requires the 
Appeal Deciding Officer to maintain the appeal record in one location. 
Section 214.17(b) corresponds with Sec.  251.98(b) and provides a non-
exhaustive list of

[[Page 62702]]

documents that should be included in the appeal record.
    Section 214.17(c) addresses closure of the appeal record and 
generally corresponds with Sec.  251.98(d), but takes into account that 
a transcript of an oral presentation may be submitted 10 days after the 
oral presentation and still be included as part of the appeal record 
under Sec.  214.16(g). Therefore, Sec.  214.17(c) states that the 
appeal record closes the day after a reply is due if no oral 
presentation is held; the day after an oral presentation is held if no 
transcript is being prepared; or the day after a transcript of the oral 
presentation is due if one is being prepared.
    In contrast to Sec.  251.98(e), Sec.  214.17(d) clarifies that the 
appeal record is open for public inspection only to the extent 
authorized by the Freedom of Information Act, the Privacy Act, and 
associated regulations at 7 CFR part 1. The inclusion of the qualifying 
language clarifies that the appeal record may be made available to the 
public for inspection and disclosure only to the extent allowed by law.
    Section 214.18 Appeal decision. This section replaces Sec.  251.99. 
Section 214.18(a) corresponds with Sec.  251.99(c) and requires the 
Appeal Deciding Officer to issue the appeal decision within 30 days of 
the closing of the appeal record.
    Section 214.18(b) corresponds with Sec.  251.99(a) and states that 
the appeal decision must be based solely on the appeal record and the 
oral presentation, if one is conducted.
    Section 214.18(c) corresponds to Sec.  251.99(a) and states that 
the appeal decision must conform to applicable laws, regulations, 
policies, and procedures.
    Section 214.18(d) corresponds with Sec.  251.99(b) and states that 
appeal decisions may affirm or reverse, in whole or in part, the 
appealable decision under review; must specify the basis for 
affirmation or reversal; and may also include instructions for further 
action by the Responsible Official.
    Section 214.18(e) corresponds with Sec.  251.99(f) and states that 
except where a decision to conduct discretionary review has been made 
and a discretionary review decision is pending or has been issued, the 
appeal decision is USDA's final administrative decision on the matter, 
and that no further administrative review will take place. If a 
decision to conduct discretionary review has been made but a 
discretionary review decision is not issued by the Discretionary 
Reviewing Officer within 30 days, the appeal decision is the final 
administrative decision. The Agency is not adopting the provision in 
Sec.  251.99(d) regarding issuance of a second-level appeal decision 
within 30 days of receipt of the appeal record from the first level 
reviewing officer, since the proposed rule does not provide for two 
levels of appeal.
    Section 214.19 Procedures for discretionary review. This section 
replaces Sec.  251.100 and establishes the procedures for discretionary 
review of appeal decisions by the line officer one level above the 
Appeal Deciding Officer and of Chief's decisions by the Under Secretary 
for Natural Resources and Environment. In contrast to Sec.  251.100, 
this section does not provide for discretionary review of certain 
dismissal or stay decisions because the Agency believes it is not 
appropriate to provide for discretionary review of purely procedural 
decisions.
    Section 214.19 differs from Sec.  251.100 in several ways. First, 
Sec.  214.19(a)(1) requires the Appeal Deciding Officer to transmit the 
appeal decision, appeal, and appealable decision to the Discretionary 
Reviewing Officer one day after the issuance of the appeal decision, 
while Sec.  251.100(b) requires transmission of only the appeal 
decision and appealable decision. By including a copy of the appeal in 
the transmitted documents, it will be easier for the Discretionary 
Reviewing Officer to identify the issues in dispute and determine 
whether discretionary review is warranted. This approach will simplify, 
expedite, and reduce the expense of the appeal process. Under Sec.  
214.19(a)(2), one day after a Chief's decision that is eligible for 
discretionary review under Sec.  214.8(b)(2), the Chief will have to 
submit the decision to the Discretionary Reviewing Officer. Since 
Chief's decisions are not appealable, there will not be an appeal 
decision or appeal of a Chief's decision to transmit to the 
Discretionary Reviewing Officer.
    Like Sec.  251.100(a), Sec.  214.19(b) requires the Discretionary 
Reviewing Officer to decide whether to conduct discretionary review 
based, at a minimum, on the degree of controversy surrounding the 
decision, the potential for litigation, and the extent to which the 
decision establishes precedent or new policy. However, unlike Sec.  
251.100(a), which acknowledges the potential that petitions or requests 
for discretionary review may be submitted by an appellant or 
intervenor, the proposed rule is silent on this issue. A petition or 
request is not necessary to trigger discretionary review. The decision 
as to whether to conduct discretionary review is entirely within the 
purview of the Discretionary Reviewing Officer, based on evaluation of 
specific criteria.
    Section 214.19(c) states that the time frame for determining 
whether to exercise discretionary review starts to run upon the 
Discretionary Reviewing Officer's receipt of the appeal decision, 
appeal, and appealable decision or Chief's decision. Section 214.19(c) 
also simplifies and in some cases shortens the time periods in Sec.  
251.100(c). Section 251.100(c) gives the Discretionary Reviewing 
Officer 15 days from receipt of the appeal decision and the appealable 
decision to decide whether to conduct discretionary review. However, 
the 251 Appeal Rule provides that the Discretionary Reviewing Officer 
may request the appeal record within that 15-day period to assist in 
deciding whether to conduct discretionary review. Once that request is 
made, the Appeal Deciding Officer has 5 days to transmit the appeal 
record to the Discretionary Reviewing Officer, who then has 15 days 
from receipt of the appeal record to decide whether to conduct 
discretionary review.
    In contrast, Sec.  214.19(c) gives the Discretionary Reviewing 
Officer 30 days from receipt of an appeal decision, appeal, and 
appealable decision or Chief's decision to decide whether to conduct 
discretionary review. The Discretionary Reviewing Officer may request 
the appeal record at any time during this 30-day period to assist in 
deciding whether to conduct discretionary review. If that request is 
made, the appeal record must be transmitted to the Discretionary 
Reviewing Officer within 5 days. However, no additional time is added 
to the 30-day period if a request for the appeal record is made. 
Consequently, the proposed rule encourages a Discretionary Reviewing 
Officer to request the appeal record promptly if there is any 
uncertainty as to whether discretionary review may be warranted based 
upon evaluation of the appeal decision, appeal, and appealable decision 
or Chief's decision. Prompt requests for the appeal record will 
expedite the process of determining whether to conduct discretionary 
review.
    Section 214.19(d) requires the Discretionary Reviewing Officer to 
notify the parties in writing of a decision to conduct discretionary 
review and gives the Discretionary Reviewing Officer the option to 
notify the parties of a decision not to conduct discretionary review 
prior to the end of the 30-day period. This approach makes it clear 
when the administrative review process has concluded for exhaustion 
purposes.
    In addition, Sec.  214.19(d) replaces the provisions in Sec.  
251.100(c) regarding the

[[Page 62703]]

consequences of taking no action during the discretionary review 
period. In contrast to Sec.  251.100(c), which provides that if no 
action is taken during that period, the parties will be notified that 
the appeal decision stands as USDA's final administrative decision, 
this section does not require the Discretionary Reviewing Officer to 
notify the parties that no action has been taken during the 30-day 
review period. If no action is taken during the discretionary review 
period, the appeal decision or Chief's decision will constitute USDA's 
final administrative decision without notification to the parties. This 
approach eliminates the ambiguity that exists under the 251 Appeal Rule 
when the 30-day period for issuing a discretionary review decision has 
expired, but the parties have not yet been notified of the 
Discretionary Reviewing Officer's decision.
    Section 214.19(e) consolidates provisions from Sec.  251.100(c), 
(d), (f), and (g) regarding issuance of discretionary review decisions. 
Specifically, like Sec.  251.100(f), Sec.  214.19(e) requires the 
Discretionary Reviewing Officer to issue a discretionary review 
decision within 30 days after deciding to conduct discretionary review; 
like Sec.  251.100(d), Sec.  214.19(e) requires discretionary review to 
be conducted exclusively on the appeal record; and like Sec.  
251.100(c) and (g), Sec.  214.19(e) provides that if the Discretionary 
Reviewing Officer fails to issue a discretionary review decision within 
30 days after notification of the decision to conduct discretionary 
review, the appeal decision or Chief's decision will constitute USDA's 
final administrative decision. Section 214.19(e) also provides that the 
Discretionary Reviewing Officer's decision will constitute USDA's final 
administrative decision.
    There is no counterpart in this section of the proposed rule to 
Sec.  251.100(e), which allows for extension of stays during the 
discretionary review process. As discussed earlier, these extensions 
are unnecessary under the proposed rule, because stays will remain in 
effect under Sec.  214.13(d) until a final administrative decision is 
made.
    Section 214.20 Exhaustion of administrative remedies. This section 
replaces Sec.  251.101 and states that judicial review of an appealable 
decision is premature until the plaintiff has exhausted administrative 
remedies in part 214. However, this section omits the statement in 
Sec.  251.101 regarding waiver of the exhaustion requirement by the 
Chief. Since section 212(e) of the Federal Crop Insurance and 
Department of Agriculture Reorganization Act (7 U.S.C. Sec.  6912(e)) 
requires exhaustion of the Department's administrative remedies, the 
Chief lacks the discretion to waive this requirement.
    Section 214.21--Information collection requirements. The Agency has 
added this section because information that has to be included in an 
appeal under proposed Sec.  214.9 is subject to the Paperwork Reduction 
Act (44 U.S.C. 3501 et seq.) and its implementing regulations at 5 CFR 
part 1320. Public comment is being sought on this information 
collection requirement, as discussed in the Regulatory Certifications 
section. See the Addresses section for instructions on how to submit 
comments on the information collection requirement. The OMB control 
number for this information collection requirement will be included in 
the final rule.
    Section 214.22 Applicability and effective date. This section 
replaces Sec.  251.102 and states that the proposed rule will apply 
only prospectively, i.e., decisions will be subject to its provisions 
only on or after the effective date of the final rule. Decisions issued 
prior to the effective date of the final rule will continue to be 
governed by the provisions of the 251 Appeal Rule.

3. Conforming Substantive Changes to Other Parts of Title 36 of the CFR

    Part 222, Subpart D--Mediation of term grazing disputes. This 
proposed rule establishes a new Subpart D to the Forest Service's range 
management regulations that will contain substantially all of Sec.  
251.103 of the 251 Appeal Rule. This provision was added to the 251 
Appeal Rule in 1999 following enactment of the Federal Crop Insurance 
Reform and Department of Agriculture Reorganization Act of 1994, which 
added grazing disputes on NFS lands to the list of issues eligible for 
mediation under USDA-certified State mediation programs. The Agency is 
proposing to relocate this section for two reasons. First, mediation of 
term grazing permit disputes is separate from the administrative appeal 
process and is conducted by a mediator affiliated with a State 
mediation program certified by USDA. If requested and submitted 
concurrently with an appeal, mediation sets aside the administrative 
appeal and may render completion of the administrative appeal process 
unnecessary. Second, mediation of term grazing permit disputes is 
unique to the range management program and does not apply to decisions 
involving any other types of written authorizations issued by the 
Forest Service. Appropriate cross-references will be included in 36 CFR 
part 214 and 36 CFR part 222, subpart D, to ensure that the Agency and 
the public understand the linkage between the grazing mediation and 
administrative appeal procedures.

4. Conforming Technical Changes to Other Parts of Title 36 of the CFR

    The following nonsubstantive, technical changes will be made to 
other parts of Title 36 of the CFR for consistency with the proposed 
rule:
    1. Part 251, subpart C, will be removed in its entirety and will be 
reserved for additional special uses regulations.
    2. Any references in other parts of Title 36 to 36 CFR part 251, 
subpart C, will be changed to 36 CFR part 214. These references appear 
at 36 CFR Sec. Sec.  212.8(d)(5)(iii), 215.11(d), 215.14(b)(5), 228.14, 
228.107(c), 241.22(f), 251.60(a)(2)(ii) and (h)(2), 251.126, 254.4(g), 
254.13(b), 254.14(b)(6), and 292.15(l).
    3. Section 212.8(d)(5) will be reorganized and reworded slightly to 
match the corresponding provision at Sec.  251.60(h)(1) governing 
revocation of easements granted under the act of October 13, 1964 (16 
U.S.C. Sec.  534).
    4. The last two sentences of Sec.  215.1(b) will be removed. 
Section 215.1 governs the purpose and scope of part 215. The last two 
sentences of Sec.  215.1(b) duplicate what is contained in Sec.  
215.11(d) regarding election of an appeal process.
    5. The definitions of ``appeal,'' ``appeal deciding officer,'' 
``appeal record,'' ``appellant,'' and ``responsible official'' in Sec.  
215.2 will be revised to conform, to the extent possible, with the 
definitions of those terms in Sec.  214.2.
    6. Section 215.11(d), governing election of an appeal process under 
part 215, will be revised to match Sec.  214.6, the provision governing 
election of an appeal process under part 214.
    7. Section 215.14(b)(5), governing contents of an appeal under part 
215, will be revised to match Sec.  214.9(a)(3), governing contents of 
an appeal under part 214.
    8. Section 215.15(c), governing timeliness determinations of appeal 
documents under part 215, will be revised to match Sec.  214.14(b), 
governing timeliness determinations for appeal documents under part 
214.
    9. The definitions of ``objection,'' ``objector,'' ``responsible 
official,'' and ``reviewing officer'' in Sec.  218.2 will be revised 
slightly to conform, to the extent possible, with the definitions of 
the same or analogous terms in Sec.  214.2. For example, the term 
``objection'' in Sec.  218.2 is analogous to the term ``appeal'' in 
Sec.  214.2, and the term ``objector'' in

[[Page 62704]]

Sec.  218.2 is analogous to the term ``appellant'' in Sec.  214.2.
    10. Section 218.10(c), governing timeliness determinations of 
objection documents under part 218, will be revised to match Sec.  
214.14(b), governing timeliness determinations for appeal documents 
under part 214.
    11. Under part 214, revocation and cancellation, where the 
Responsible Official takes action to end a written authorization, are 
appealable, but termination, where a written authorization ends by 
operation of law or in accordance with its terms, is not appealable. In 
several parts of Title 36 that authorize decisions that will be 
appealable under part 214, ``terminate'' or ``termination'' is used in 
the context that ``revoke'' or ``cancel'' or ``revocation'' or 
``cancellation'' are used in part 214. Changes in terminology will be 
made in these other parts for consistency with part 214.
    Specifically, in Sec.  212.8(d)(5), governing revocation of 
easements granted under the act of October 13, 1964 (16 U.S.C. 534), 
``terminate'' will be changed to ``revoke,'' and ``terminated'' will be 
changed to ``revoked.''
    With regard to contracts for mineral materials, in Sec.  
228.65(b)(4), ``terminate'' will be changed to ``cancel.'' In the 
heading and text of Sec.  228.66(c), ``termination'' will be changed to 
``cancellation,'' and ``terminated'' will be changed to ``cancelled.'' 
``Cancellation'' and ``cancel,'' rather than ``revocation'' and 
``revoke,'' will be used in these provisions because they involve 
contracts, and the former terms are more appropriate in that context. 
In addition, ``cancellation'' and ``cancel'' are used in corresponding 
Sec.  228.55.
    In Sec.  241.22(e), which governs determinations that proposed 
activities are consistent with the conservation of fish, wildlife, and 
their habitat in the Chugach National Forest, ``terminate'' will be 
changed to ``revoke.''
    In Sec.  251.15(a)(2)(iv) and (a)(3), which govern exercise of 
mineral rights reserved in conveyances to the United States, 
``termination'' will be changed to ``revocation,'' and minor, 
nonsubstantive revisions for clarity will be made. When permits 
governing the exercise of reserved mineral rights are issued, a copy of 
the regulations at 36 CFR part 251, subpart A, is attached to the 
permit. For any of these permits issued before the effective date of 
the final rule, the Agency will interpret ``termination'' in the 
regulations attached to the permit to mean ``revocation'' under 36 CFR 
part 214, which will be appealable under that part.
    In Sec.  254.15(c)(2), which governs land exchanges, 
``terminating'' will be changed to ``revoking,'' and minor changes will 
be made for consistency with the corresponding revocation authority in 
Sec.  251.60(a)(2)(i)(D).
    In Sec.  292.18(f), which governs operating plans for mineral 
activities on Federal lands in the Sawtooth National Recreation Area, 
``terminate'' will be changed to ``revoke,'' and minor, nonsubstantive 
revisions will be made.

5. Regulatory Certifications

Regulatory Impact

    This proposed rule has been reviewed under USDA procedures and 
Executive Order 12866, Regulatory Planning and Review. It has been 
determined that this is not a significant rule. This proposed rule will 
not have an annual effect of $100 million or more on the economy, nor 
will the proposed rule adversely affect productivity, competition, 
jobs, the environment, public health or safety, or State and local 
governments. This proposed rule will not interfere with any action 
taken or planned by another agency or raise new legal or policy issues. 
Finally, this proposed rule will not alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of beneficiaries of those programs.
    Moreover, this proposed rule has been considered in light of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The Agency has 
determined that the proposed rule will not have a significant economic 
impact on a substantial number of small entities as defined by that 
Act. Therefore, a regulatory flexibility analysis is not required for 
this proposed rule.

Environmental Impact

    This proposed rule will revise the procedures and requirements for 
the administrative appeal of certain decisions related to written 
authorizations for the occupancy or use of NFS lands and resources. 
Forest Service regulations at 36 CFR 220.6(d)(2) exclude from 
documentation in an environmental assessment or environmental impact 
statement ``rules, regulations, or policies to establish servicewide 
administrative procedures, program processes, or instruction.'' The 
Agency's preliminary determination is that this proposed rule falls 
within this category of actions and that no extraordinary circumstances 
exist which would require preparation of an environmental assessment or 
environmental impact statement.

Energy Effects

    This proposed rule has been reviewed under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Agency has determined that this proposed rule 
will not constitute a significant energy action as defined in the 
Executive Order.

Controlling Paperwork Burdens on the Public

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3520), the Forest Service is requesting approval of the new 
information collection requirement associated with this proposed rule.
    Title: Appeal of Decisions Relating to Occupancy or Use of National 
Forest System Lands and Resources.
    OMB Number: 0596--New.
    Expiration Date of Approval: 3 years from approval date.
    Type of Request: New information collection.
    Abstract: This appeal process modifies, renames, and relocates to a 
new part in the CFR the appeal process for decisions related to 
occupancy or use of NFS lands and resources. This updated regulation 
will simplify the appeal process, shorten the appeal period, and reduce 
the cost of appeal for certain types of Forest Service decisions 
affecting occupancy or use of NFS lands and resources. The information 
collected will be used by the Forest Service to determine if the 
decision that was appealed should be affirmed or reversed in whole or 
in part.
    These appeal procedures are limited to holders, operators, and 
solicited applicants as defined in the proposed rule, who therefore are 
the only individuals or entities subject to the information collection 
requirement.
    The information collection required for the administrative appeal 
process in 36 CFR part 214 is approved and assigned OMB Control No. 
0596-New.
    Estimated Number of Respondents: 160.
    Estimated Number of Responses per Respondent: 1.
    Estimated Number of Total Annual Responses: 160.
    Estimated Total Annual Burden on Respondents: 1,280 hours.
    Comments: Comments are invited on (1) Whether the proposed 
information collection requirement is necessary for proper performance 
of the functions of the Agency, including whether the information will 
have practical utility; (2) the accuracy of the Agency's estimate of 
the burden of the proposed information collection requirement,

[[Page 62705]]

including the validity of the methodology and assumptions used; (3) 
ways to enhance the quality, utility, and clarity of the information to 
be collected; and (4) ways to minimize the burden of the information 
collection requirement on those who will respond, including the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology.

Federalism

    The Agency has considered this proposed rule under Executive Order 
13132 on federalism. The Agency has determined that the proposed rule 
conforms with the federalism principles set out in this executive 
order; will not impose any compliance costs on the States; and will not 
have substantial direct effects on the States, on the relationship 
between the Federal government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
Therefore, the Agency has concluded that this proposed rule does not 
have federalism implications.

Consultation and Coordination With Indian Tribal Governments

    Pursuant to Executive Order 13175, Consultation and Coordination 
with Indian Tribal Governments, the Forest Service is committed to 
government-to-government consultation on Agency policy that could have 
an impact on tribes. In that spirit, information about the proposed 
rule was sent to the Regional Offices, with guidance to distribute the 
information to tribes in their region and to follow up with visits to 
tribes if requests for consultation were received. A total of 120 days 
was provided for this process.
    No requests for government-to-government consultation were made, 
and a small number of comments was received. A few respondents asked 
for early notification and consultation on actions affecting tribal 
treaty or other legal rights. No changes were made to the proposed rule 
as a result of the comments received.
    This proposed rule does not have substantial direct or unique 
effects on Indian tribes. This proposed rule is revising administrative 
appeal regulations for decisions relating to occupancy or use of NFS 
lands and resources. Tribal governments may participate in the 
administrative appeal process by requesting to intervene in an appeal 
of a decision that may adversely affect tribal rights.

No Takings Implications

    The Agency has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights. The Agency has determined that this proposed rule will 
not pose the risk of a taking of private property.

Civil Justice Reform

    This proposed rule has been reviewed under Executive Order 12988 on 
civil justice reform. Upon adoption of this proposed rule, (1) All 
State and local laws and regulations that conflict with this rule or 
that impede full implementation of the rule will be preempted; (2) no 
retroactive effect will be given to this proposed rule; and (3) this 
proposed rule will not require the use of administrative proceedings 
before parties could file suit in court challenging its provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), the Agency has assessed the effects of this proposed 
rule on State, local, and tribal governments and the private sector. 
This proposed rule will not compel the expenditure of $100 million or 
more by any State, local, or tribal government or anyone in the private 
sector. Therefore, a statement under section 202 of the act is not 
required.

List of Subjects

36 CFR Part 212

    Highways and roads, National forests, Public lands--rights-of-way, 
and Transportation.

36 CFR Part 214

    Administrative practice and procedure, National forests.

36 CFR Part 215

    Administrative practice and procedure, National forests.

36 CFR Part 218

    Administrative practice and procedure, National forests.

36 CFR Part 222

    Range management, National forests, National grassland.

36 CFR Part 228

    Environmental protection, Mines, National forests, Oil and gas 
exploration, Public lands--mineral resources, Public lands--rights-of-
way, Reporting and recordkeeping requirements, Surety bonds, Wilderness 
areas.

36 CFR Part 241

    Fish, Intergovernmental relations, National forests, Wildlife, 
Wildlife refuges.

36 CFR Part 251

    Administrative practice and procedure, Electric power, National 
forests, Public lands--rights-of-way, Reporting and recordkeeping 
requirements, Water resources.

36 CFR Part 254

    Community facilities, National forests.

36 CFR Part 292

    Mineral resources, Recreation and recreation areas.

    Therefore, for the reasons set forth in the preamble, the Forest 
Service proposes to amend Title 36 Chapter II of the CFR to read as 
follows:

PART 212--ADMINISTRATION OF THE FOREST TRANSPORTATION SYSTEM

    1. The authority citation for Part 212 continues to read as 
follows:

    Authority: 16 U.S.C. 551, 23 U.S.C. 205.

    2. In Sec.  212.8, revise paragraph (d)(5) to read as follows:


Sec.  212.8  Permission to cross lands and easements owned by the 
United States and administered by the Forest Service.

* * * * *
    (d) * * *
    (5)(i) The Chief may revoke any easement granted under the 
provisions of the Act of October 13, 1964 (78 Stat. 1089, 16 U.S.C. 
534):
    (A) By consent of the owner of the easement;
    (B) By condemnation; or
    (C) Upon abandonment after a 5-year period of nonuse by the owner 
of the easement.
    (ii) Before any easement is revoked upon abandonment, the owner of 
the easement shall be given notice and, upon the owner's request made 
within 60 days after receipt of the notice, shall be given an appeal in 
accordance with the provisions of 36 CFR part 214.
    3. Add a new part 214 to read as follows:

PART 214--APPEAL OF DECISIONS RELATING TO OCCUPANCY OR USE OF 
NATIONAL FOREST SYSTEM LANDS AND RESOURCES

Sec.
214.1 Purpose and scope.
214.2 Definitions.
214.3 Parties to an appeal.

[[Page 62706]]

214.4 Decisions that are appealable.
214.5 Decisions that are not appealable.
214.6 Election of appeal process.
214.7 Notice of an appealable decision.
214.8 Levels of review.
214.9 Appeal content.
214.10 Dismissal of an appeal.
214.11 Intervention.
214.12 Responsive statement and reply.
214.13 Stays.
214.14 Conduct of an appeal.
214.15 Resolution of issues prior to an appeal decision.
214.16 Oral presentation.
214.17 Appeal record.
214.18 Appeal decision.
214.19 Procedures for discretionary review.
214.20 Exhaustion of administrative remedies.
214.21 Information collection requirements.
214.22 Applicability and effective date.

    Authority:  7 U.S.C. 1011(f); 16 U.S.C. 472, 551.

Sec.  214.1  Purpose and scope.

    (a) Purpose. This part provides a fair and deliberate process by 
which holders, operators, and solicited applicants may appeal certain 
written decisions issued by Responsible Officials involving written 
instruments authorizing the occupancy or use of National Forest System 
lands and resources.
    (b) Scope. This part specifies who may appeal, decisions that are 
appealable and not appealable, the responsibilities of parties to an 
appeal, and the time periods and procedures that govern the conduct of 
appeals under this part.


Sec.  214.2  Definitions.

    Appeal. A document filed with an Appeal Deciding Officer in which 
an individual or entity seeks review of a Forest Service decision under 
this part.
    Appeal Deciding Officer. The Forest Service employee who is one 
organizational level above the Responsible Official and who is 
authorized to issue an appeal decision under this part.
    Appeal decision. The final written decision issued by an Appeal 
Deciding Officer on an appeal filed under this part which affirms or 
reverses a Responsible Official's appealable decision in whole or in 
part, explains the basis for the decision, and provides additional 
instructions to the parties as necessary.
    Appeal record. Documentation and other information filed with the 
Appeal Deciding Officer within the relevant time period by parties to 
the appeal and upon which review of an appeal is conducted.
    Appellant. An individual or entity that has filed an appeal under 
this part.
    Cancellation. The invalidation, in whole or in part, of a term 
grazing permit or an instrument for the disposal of mineral materials.
    Discretionary Reviewing Officer. The U.S. Department of Agriculture 
(USDA) or Forest Service employee authorized to review an appeal 
decision by an Appeal Deciding Officer or a decision by the Chief under 
this part.
    Holder. An individual or entity that holds a valid written 
authorization.
    Intervenor. An individual or entity whose request to intervene has 
been granted by the Appeal Deciding Officer.
    Modification. A Responsible Official's written revision of the 
terms and conditions of a written authorization.
    Operator. An individual or entity conducting or proposing to 
conduct mineral operations.
    Oral presentation. An informal meeting conducted by the Appeal 
Deciding Officer during which parties to an appeal may present 
information in support of their position.
    Prospectus. An announcement published by the Forest Service 
soliciting competitive applications for a written authorization.
    Responsible Official. The Forest Service employee who issued a 
decision that may be appealed under this part.
    Responsive statement. The document filed by the Responsible 
Official with the Appeal Deciding Officer that addresses the issues 
raised and relief requested in an appeal.
    Revocation. The cessation, in whole or in part, of a written 
authorization, other than a grazing permit or an instrument for the 
disposal of mineral materials, by a Responsible Official before the end 
of the specified period of occupancy or use.
    Solicited applicant. An individual or entity that has submitted a 
competitive application in response to a prospectus.
    Suspension. A temporary revocation or cancellation of a written 
authorization.
    Termination. The cessation of a written authorization by operation 
of law or by operation of a fixed or agreed-upon condition, event, or 
time as specified in the authorization, which does not require a 
decision by a Responsible Official to take effect.
    Written authorization. A term grazing permit, plan of operations, 
special use authorization, mineral material contract or permit, or 
other type of written instrument issued by the Forest Service or a 
lease or permit for leasable minerals issued by the U.S. Department of 
the Interior that authorizes the occupancy or use of National Forest 
System lands or resources and specifies the terms and conditions under 
which the occupancy or use may occur.


Sec.  214.3  Parties to an appeal.

    Parties to an appeal under this part are limited to holders, 
operators, solicited applicants, intervenors, and the Responsible 
Official.


Sec.  214.4  Decisions that are appealable.

    To be appealable under this part, a decision must be issued by a 
Responsible Official in writing and must fall into one of the following 
categories:
    (a) Livestock grazing.
    (1) Modification of a term grazing permit issued under 36 CFR part 
222, subpart A. Issuance of annual operating instructions does not 
constitute a permit modification and is not an appealable decision;
    (2) Suspension or cancellation, other than cancellation resulting 
from the permittee's waiver to the United States, of a term grazing 
permit issued under 36 CFR part 222, subpart A;
    (3) Denial of reauthorization of livestock grazing under a term 
grazing permit if the holder files an application for a new permit 
before the existing permit expires; or
    (4) Denial of a term grazing permit to a solicited applicant under 
36 CFR part 222, subpart C.
    (b) Minerals. (1) Approval or denial of an initial, modified, or 
supplemental plan of operations or operating plan; requirement of an 
increase in bond coverage; requirement of measures to avoid irreparable 
injury, loss, or damage to surface resources pending modification of a 
plan of operations or operating plan; or issuance of a notice of 
noncompliance pursuant to 36 CFR part 228, subpart A or D, or part 292, 
subpart D, F, or G;
    (2) Approval or denial of an operating plan, issuance of a notice 
of noncompliance, extension, suspension, or cancellation, other than 
cancellation by mutual agreement, for contracts, permits, or 
prospecting permits for mineral materials issued under 36 CFR part 228, 
subpart C;
    (3) Approval or denial of a surface use plan of operations, request 
to supplement a surface use plan of operations, suspension of oil and 
gas operations, or issuance of a notice of noncompliance pursuant to 36 
CFR part 228, subpart E;
    (4) Consent or denial of consent to the U.S. Department of the 
Interior's administration of previously issued leases or permits for 
leasable minerals other than oil and gas resources;
    (5) Suspension or revocation of an operating plan for Federal lands 
within the Sawtooth National Recreation Area pursuant to 36 CFR part 
292, subpart D;

[[Page 62707]]

    (6) Suspension of locatable mineral operations on National Forest 
System lands within the Hells Canyon National Recreation Area pursuant 
to 36 CFR part 292, subpart F;
    (7) Suspension of locatable mineral operations on National Forest 
System lands within the Smith River National Recreation Area or 
approval of an initial or amended operating plan for exercise of 
outstanding mineral rights on National Forest System lands within the 
Smith River National Recreation Area pursuant to 36 CFR part 292, 
subpart G;
    (8) Except as provided in paragraph (7), determinations of the 
acceptability of an initial or amended operating plan for exercise of 
outstanding mineral rights on National Forest System lands; or
    (9) Determinations of the acceptability of an initial or amended 
operating plan for exercise of reserved mineral rights located on 
National Forest System lands.
    (c) Special uses. (1) Modification, suspension, or revocation of a 
special use authorization, other than acceptance of an operating plan, 
including:
    (i) A special use authorization issued under 36 CFR part 251, 
subpart B or D, other than modification, suspension, or revocation of a 
noncommercial group use permit, suspension or revocation of an easement 
issued pursuant to 36 CFR 251.53(e) or 251.53(l), or revocation with 
the consent of the holder;
    (ii) A special use authorization for ingress and egress to 
intermingled and adjacent private lands across National Forest System 
lands issued under 36 CFR part 212, subpart A;
    (iii) A special use authorization issued under 36 CFR part 251, 
subpart A, that authorizes the exercise of rights reserved in 
conveyances to the United States;
    (iv) A permit and occupancy agreement issued under 36 CFR 213.3 for 
national grasslands and other lands administered under Title III of the 
Bankhead-Jones Farm Tenant Act;
    (v) A permit issued under 36 CFR 293.13 for access to valid 
occupancies entirely within a wilderness in the National Forest System.
    (vi) A permit issued under the Archaeological Resources Protection 
Act of 1979 and 36 CFR part 296 for excavation or removal of 
archaeological resources; and
    (vii) A special use authorization governing surface use associated 
with the exercise of outstanding mineral rights;
    (2) Denial of a special use authorization to a solicited applicant 
based on the process used to select a successful applicant;
    (3) Implementation of new land use fees for a special use 
authorization, other than:
    (i) Revision or replacement of a land use fee system or schedule 
that is implemented through public notice and comment; and
    (ii) Annual land use fee adjustments based on an inflation factor 
that are calculated under an established fee system or schedule in 
accordance with the terms and conditions of a written authorization;
    (4) Assignment of a performance rating that affects reissuance or 
extension of a special use authorization; or
    (5) Denial of renewal of a special use authorization if it 
specifically provides for renewal and if the holder requests renewal of 
the authorization before it expires.
    (d) Other land uses. Denial or revocation of a certification of 
compliance issued under 36 CFR part 292, subpart C, related to the use, 
subdivision, and development of privately owned property within the 
boundaries of the Sawtooth National Recreation Area.


Sec.  214.5  Decisions that are not appealable.

    Holders, operators, and solicited applicants may not appeal any 
decisions issued by a Responsible Official that are not expressly set 
forth in Sec.  214.4.


Sec.  214.6  Election of appeal process.

    Decisions may not be appealed by an appellant under more than one 
part of this chapter. Parties eligible to appeal a decision under more 
than one part in this chapter must elect the part under which they will 
pursue their appeal. Once an election is made, parties may not appeal 
the decision under the parts they did not elect.


Sec.  214.7  Notice of an appealable decision.

    (a) The Responsible Official shall include language in each written 
decision which notifies the affected holder, operator, or solicited 
applicant whether an opportunity to appeal the decision exists.
    (b) If the decision is appealable, the notice must specify the 
regulations under which an appeal may be filed, the contents of an 
appeal, the name and mailing address of the Appeal Deciding Officer, 
and the filing deadline. The notice shall also include a statement 
indicating the Responsible Official's willingness to meet with the 
affected holder, operator, or solicited applicant to discuss the 
decision and, where applicable, informing term grazing permit holders 
of the opportunity to request mediation in accordance with 36 CFR 
222.60-222.66.
    (c) If the decision is not appealable, the Responsible Official 
must include a statement in the written decision informing the affected 
holder, operator, or solicited applicant that further administrative 
review of the decision is not available.


Sec.  214.8  Levels of review.

    (a) Appeal. (1) One level of appeal is available for appealable 
decisions made by District Rangers, Forest or Grassland Supervisors, 
and Regional Foresters. If a District Ranger is the Responsible 
Official, the appeal is filed with the Forest or Grassland Supervisor. 
If a Forest or Grassland Supervisor is the Responsible Official, the 
appeal is filed with the Regional Forester. If a Regional Forester is 
the Responsible Official, the appeal is filed with the Chief of the 
Forest Service.
    (2) No appeal is available for decisions made by the Chief.
    (b) Discretionary review. (1) Appeal decisions issued by Forest or 
Grassland Supervisors, Regional Foresters, or the Chief are eligible 
for discretionary review. If a Forest or Grassland Supervisor is the 
Appeal Deciding Officer, discretionary review is conducted by the 
Regional Forester. If a Regional Forester is the Appeal Deciding 
Officer, discretionary review is conducted by the Chief. If the Chief 
is the Appeal Deciding Officer, discretionary review is conducted by 
the Under Secretary for Natural Resources and Environment.
    (2) Decisions made by the Chief that fall into one of the 
categories enumerated in 36 CFR 214.4 are eligible for discretionary 
review by the Under Secretary for Natural Resources and Environment.


Sec.  214.9  Appeal content.

    (a) General requirements for the contents of an appeal. All appeals 
must include:
    (1) The appellant's name, mailing address, daytime telephone 
number, and e-mail address, if any;
    (2) A copy of the decision being appealed;
    (3) The title or type of written authorization and the date of 
application for or issuance of the written authorization, if 
applicable;
    (4) A statement of how the appellant is adversely affected by the 
decision being appealed;
    (5) A statement of the relevant facts underlying the decision being 
appealed;
    (6) A discussion of issues raised by the decision being appealed, 
including identification of any laws, regulations, or policies that 
were allegedly violated in reaching the decision being appealed;

[[Page 62708]]

    (7) A statement as to whether and how the appellant has attempted 
to resolve the issues under appeal with the Responsible Official and 
the date and outcome of those efforts;
    (8) A statement of the relief sought;
    (9) Any documents and other information upon which the appellant 
relies; and
    (10) The signature of the appellant and the date.
    (b) Specific requirements for the contents of an appeal. In 
addition to the general requirements in Sec.  214.9(a), the following 
specific requirements must be included in an appeal, where applicable:
    (1) A request for an oral presentation under Sec.  214.16;
    (2) A request for a stay under Sec.  214.13;
    (3) A request to participate in a state mediation program regarding 
certain term grazing permit disputes under 36 CFR part 222, subpart D; 
and
    (4) The regulation under which the appeal is being filed if there 
is an option to file under more than one.
    (c) Time frame for filing an appeal. An appeal must be filed with 
the Appeal Deciding Officer within 30 days of the date of the decision, 
except that an appeal of a decision revoking an easement for 
abandonment pursuant to the Act of October 13, 1964, 16 U.S.C. 534, 
must be filed within 60 days of the date of the decision.


Sec.  214.10  Dismissal of an appeal.

    (a) The Appeal Deciding Officer shall dismiss an appeal without 
review when one or more of the following applies:
    (1) The appeal is not filed within the required time period.
    (2) The person or entity that filed the appeal is not a holder, an 
operator, or a solicited applicant of a written authorization that is 
the subject of the appealable decision.
    (3) The decision is not appealable under this part.
    (4) The appeal does not meet the content requirements specified in 
Sec.  214.9(a), provided that an appeal may not be dismissed for 
failure to include an appraisal report which has not been completed by 
the filing deadline.
    (5) The appellant withdraws the appeal.
    (6) The Responsible Official withdraws the written decision that 
was appealed.
    (7) An informal resolution of the dispute is reached pursuant to 
Sec.  214.15 or a mediated agreement of a term grazing dispute is 
achieved pursuant to 36 CFR part 222, subpart D.
    (8) The requested relief cannot be granted under applicable facts, 
laws, regulations, or policies.
    (b) The Appeal Deciding Officer shall give written notice of the 
dismissal of an appeal and shall set forth the reasons for dismissal.


Sec.  214.11  Intervention.

    (a) Eligibility to intervene. To participate as an intervenor in 
appeals under this part, a party must:
    (1) Be a holder, a solicited applicant, or an operator who claims 
an interest relating to the subject matter of the decision being 
appealed and is so situated that disposition of the appeal may impair 
that interest; and
    (2) File a written request to intervene with the Appeal Deciding 
Officer within 15 days after an appeal has been filed.
    (b) Request to intervene. A request to intervene must include:
    (1) A description of the requester's interest in the appeal and how 
disposition of the appeal may impair that interest;
    (2) A discussion of the factual and legal allegations in the appeal 
with which the requester agrees or disagrees;
    (3) A description of additional facts and issues that are not 
raised in the appeal that the requester believes are relevant and 
should be considered;
    (4) A description of the relief sought, particularly as it differs 
from the relief sought by the appellant;
    (5) Where applicable, a response to the appellant's request for a 
stay of the decision being appealed;
    (6) Where applicable, a response to the appellant's request for an 
oral presentation;
    (7) Where applicable, a response to the appellant's request for 
mediation of a term grazing permit dispute under 36 CFR part 222, 
subpart D; and
    (8) The requester's signature and the date.
    (c) Response to a request to intervene. The appellant and 
Responsible Official shall have 5 days from receipt of a request to 
intervene to file a written response with the Appeal Deciding Officer.
    (d) Intervention decision. The Appeal Deciding Officer shall have 5 
days after the date a response to a request to intervene is due to 
issue a decision granting or denying the request. The Appeal Deciding 
Officer's decision shall be in writing and shall briefly explain the 
basis for granting or denying the request. The Appeal Deciding Officer 
shall deny a request to intervene or shall withdraw a decision granting 
intervenor status as moot if the corresponding appeal is dismissed 
under Sec.  214.10.


Sec.  214.12  Responsive statement and reply.

    (a) Responsive statement. The Responsible Official shall prepare a 
responsive statement addressing the factual and legal allegations in 
the appeal. The responsive statement and any supporting documentation 
shall be filed with the Appeal Deciding Officer within 20 days of 
receipt of the appeal or the unsuccessful conclusion of mediation 
conducted pursuant to 36 part 222, subpart D, whichever is later.
    (b) Reply. Within 10 days of receipt of the responsive statement, 
the appellant and intervenors, if any, may file a reply with the Appeal 
Deciding Officer addressing the contentions in the responsive 
statement.


Sec.  214.13  Stays.

    (a) An appealable decision shall be implemented unless an 
authorized stay is granted under Sec.  214.13(b) or an automatic stay 
goes into effect under Sec.  214.13(c).
    (b) Authorized stays. Except where a stay automatically goes into 
effect under Sec.  214.13(c), the Appeal Deciding Officer may grant a 
written request to stay the decision that is the subject of an appeal 
under this part.
    (1) Stay request. To obtain a stay, an appellant must include a 
request for a stay in the appeal pursuant to Sec.  214.9(b)(2) and a 
statement explaining the need for a stay. The statement must include, 
at a minimum:
    (i) A description of the adverse impact to the appellant if a stay 
is not granted;
    (ii) A description of the adverse impact to National Forest System 
lands and resources if a stay is not granted; or
    (iii) An explanation as to how a meaningful decision on the merits 
of the appeal could not be achieved if a stay is not granted.
    (2) Stay response. The Responsible Official may support, oppose, or 
take no position in the responsive statement regarding the appellant's 
stay request. Intervenors may support, oppose, or take no position in 
the intervention request regarding the appellant's stay request.
    (3) Stay decision. The Appeal Deciding Officer shall issue a 
decision granting or denying the stay request within 10 days after a 
responsive statement or an intervention request is filed, whichever is 
later. The stay decision shall be in writing and shall briefly explain 
the basis for granting or denying the stay request.
    (c) Automatic stays. The following decisions are automatically 
stayed once an appeal is filed by a holder, operator, or solicited 
applicant:
    (1) Decisions to issue a written authorization pursuant to a 
prospectus;
    (2) Decisions to recalculate revenue-based land use fees for a 
special use

[[Page 62709]]

authorization pursuant to an audit issued after November 10, 2011; and
    (3) Decisions to cancel or suspend a term grazing permit subject to 
mediation under 36 CFR 222.60 and for which mediation is requested in 
accordance with that provision.
    (d) Stay duration. Authorized stays and automatic stays under Sec.  
214.13(c)(1) and (c)(2) shall remain in effect until a final 
administrative decision is issued in the appeal, unless they are 
modified or lifted in accordance with Sec.  214.13(e). Automatic stays 
under Sec.  214.13(c)(3) shall remain in effect for the duration of the 
mediation period as provided in 36 CFR 222.62.
    (e) Modification or lifting of a stay. The Appeal Deciding Officer 
or a Discretionary Reviewing Officer may modify or lift an authorized 
stay based upon a written request by a party who demonstrates that the 
circumstances have changed since the stay was granted and that it is 
unduly burdensome or unfair to maintain the stay.


Sec.  214.14  Conduct of an appeal.

    (a) Method of filing. Appeal documents may be filed in person or by 
courier, by mail or private delivery service, by facsimile, or by 
electronic mail.
    (b) Evidence of timely filing. Parties to an appeal are responsible 
for ensuring timely filing of appeal documents. Questions regarding 
whether an appeal document has been timely filed shall be resolved by 
the Appeal Deciding Officer based on the following indicators:
    (1) The date of the U.S. Postal Service postmark for an appeal 
received before the close of the fifth business day after the appeal 
filing date;
    (2) The electronically generated posted date and time for e-mail 
and facsimiles;
    (3) The shipping date for delivery by private carrier for an appeal 
received before the close of the fifth business day after the appeal 
filing date; or
    (4) The official agency date stamp showing receipt of hand 
delivery.
    (c) Computation of time. (1) A time period in this part begins on 
the first day following the event or action triggering the time period.
    (2) All time periods shall be computed using calendar days, 
including Saturdays, Sundays, and Federal holidays. However, if a time 
period ends on a Saturday, Sunday, or Federal holiday, the time period 
is extended to the end of the next Federal business day.
    (d) Extensions of time. (1) In general. Parties, Appeal Deciding 
Officers, and Discretionary Reviewing Officers shall meet the time 
periods specified in this part, unless an extension of time has been 
granted under this section. Extension requests from parties shall be 
made in writing, shall explain the need for the extension, and shall be 
transmitted to the Appeal Deciding Officer.
    (2) Time periods that may not be extended. The following time 
periods may not be extended:
    (i) The time period for filing an appeal;
    (ii) The time period to decide whether to conduct discretionary 
review of an appeal decision or a Chief's decision; and
    (iii) The time period to issue a discretionary review decision.
    (3) Time periods that may be extended. Except as provided in Sec.  
214.14(d)(2), all time periods in this part may be extended upon 
written request by a party and a finding of good cause for the 
extension by the Appeal Deciding Officer. Written requests for 
extensions of time will be automatically granted by the Appeal Deciding 
Officer where the parties represent that they are working in good faith 
to resolve the dispute and that additional time would facilitate 
negotiation of a mutually agreeable resolution.
    (4) Decision. The Appeal Deciding Officer shall have 10 days to 
issue a decision granting or denying the extension request. The 
decision shall be in writing and shall briefly explain the basis for 
granting or denying the request.
    (5) Duration. Ordinarily extensions that add more than 60 days to 
the appeal period should not be granted.
    (e) Procedural orders. The Appeal Deciding Officer may issue 
procedural orders as necessary for the orderly, expeditious, and fair 
conduct of an appeal under this part.
    (f) Consolidation of appeals. (1) The Appeal Deciding Officer may 
issue an order consolidating multiple appeals of the same decision or 
of similar decisions involving common issues of fact and law and issue 
one appeal decision.
    (2) The Appeal Deciding Officer may issue one decision for appeals 
filed under this part and other parts of this chapter that involve 
common issues of fact and law.
    (3) The Responsible Official may prepare one responsive statement 
for consolidated appeals.
    (g) Requests for additional information. The Appeal Deciding 
Officer may ask a party for additional information to clarify appeal 
issues. If necessary, the Appeal Deciding Officer may extend appeal 
time periods to allow for submission of the additional information and 
to give the other parties an opportunity to review and comment on it.
    (h) Service of documents. (1) Parties shall send copies of all 
documents filed in an appeal to all other parties to the appeal at the 
same time the original is filed with the Appeal Deciding Officer, 
including the appellant's sending a copy of the appeal to the 
Responsible Official. Each party is responsible for identifying other 
parties to the appeal and may contact the Appeal Deciding Officer for 
assistance regarding their names and addresses. Documents shall not be 
considered by the Appeal Deciding Officer until they have been sent to 
all parties to the appeal.
    (2) All decisions and orders issued by the Appeal Deciding Officer 
and the Discretionary Reviewing Officer related to the appeal shall be 
sent to all parties to the appeal.
    (i) Posting of Final Decisions. Once a final appeal decision or 
discretionary review decision has been issued, it shall be posted on 
the Web site of the national forest or national grassland or region 
that issued the appealable decision or on the Web site of the 
Washington Office for Chief's decisions.
    (j) Expenses. Each party to an appeal shall bear its own expenses, 
including costs associated with preparing the appeal, participating in 
an oral presentation, obtaining information regarding the appeal, and 
retaining professional consultants or counsel.


Sec.  214.15  Resolution of issues prior to an appeal decision.

    (a) The Responsible Official may discuss an appeal with a party or 
parties to narrow issues, agree on facts, and explore opportunities to 
resolve one or more of the issues in dispute by means other than 
issuance of an appeal decision.
    (b) The Responsible Official who issued a decision under appeal may 
withdraw the decision, in whole or in part, during an appeal to resolve 
one or more issues in dispute. The Responsible Official shall notify 
the parties to the appeal and the Appeal Deciding Officer of the 
withdrawal. If the withdrawal of the decision eliminates all the issues 
in dispute in the appeal, the Appeal Deciding Officer shall dismiss the 
appeal under Sec.  214.10.


Sec.  214.16  Oral presentation.

    (a) Purpose. The purpose of an oral presentation is to provide 
parties to an appeal with an opportunity to present their arguments 
regarding the appeal to the Appeal Deciding Officer.
    (b) Scope. Oral presentations shall be limited to clarifying or 
elaborating upon

[[Page 62710]]

information that has already been filed with the Appeal Deciding 
Officer. New information may be presented only if it could not have 
been raised earlier in the appeal and if it would be unfair and 
prejudicial to exclude it.
    (c) Requests. A request for an oral presentation included in an 
appeal shall be granted by the Appeal Deciding Officer unless the 
appeal has been dismissed under Sec.  214.10.
    (d) Availability. Oral presentations may be conducted during appeal 
of a decision, but not during discretionary review.
    (e) Scheduling and rules. The Appeal Deciding Officer shall conduct 
the oral presentation within 10 days of the date a reply to the 
responsive statement is due. The Appeal Deciding Officer shall notify 
the parties of the date, time, and location of the oral presentation 
and the procedures to be followed.
    (f) Participation. All parties to an appeal are eligible to 
participate in the oral presentation. At the discretion of the Appeal 
Deciding Officer, non-parties may observe the oral presentation, but 
are not eligible to participate.
    (g) Summaries and transcripts. A summary of an oral presentation 
may be included in the appeal record only if it is submitted to the 
Appeal Deciding Officer by a party at the end of the oral presentation. 
A transcript of an oral presentation prepared by a certified court 
reporter may be included in the appeal record if the transcript is 
filed with the Appeal Deciding Officer within 10 days of the date of 
the oral presentation and if the transcript is paid for by those who 
requested it.


Sec.  214.17  Appeal record.

    (a) Location. The Appeal Deciding Officer shall maintain the appeal 
record in one location.
    (b) Contents. The appeal record shall consist of information filed 
with the Appeal Deciding Officer, including the appealable decision, 
appeal, intervention request, responsive statement, reply, oral 
presentation summary or transcript, procedural orders and other 
rulings, and any correspondence or other documentation related to the 
appeal as determined by the Appeal Deciding Officer.
    (c) Closing of the record.
    (1) The Appeal Deciding Officer shall close the appeal record on:
    (i) The day after the date the reply to the responsive statement is 
due if no oral presentation is conducted;
    (ii) The day after the oral presentation is conducted if no 
transcript of the oral presentation is being prepared; or
    (iii) The day after a transcript of the oral presentation is due if 
one is being prepared.
    (2) The Appeal Deciding Officer shall notify all parties to the 
appeal of closing of the record.
    (d) Inspection by the public. The appeal record is open for public 
inspection in accordance with the Freedom of Information Act, the 
Privacy Act, and 7 CFR part 1.


Sec.  214.18  Appeal decision.

    (a) Appeal decisions made by the Appeal Deciding Officer shall be 
issued within 30 days of the date the appeal record is closed.
    (b) The appeal decision shall be based solely on the appeal record 
and oral presentation, if one is conducted.
    (c) The appeal decision shall conform to all applicable laws, 
regulations, policies, and procedures.
    (d) The appeal decision may affirm or reverse the appealable 
decision, in whole or in part. The appeal decision must specify the 
basis for affirmation or reversal and may include instructions for 
further action by the Responsible Official.
    (e) Except where a decision to conduct discretionary review has 
been made and a discretionary review decision has been issued, the 
appeal decision shall constitute USDA's final administrative decision.


Sec.  214.19  Procedures for discretionary review.

    (a) Initiation. (1) One day after issuance of an appeal decision, 
the Appeal Deciding Officer shall send a copy of the appeal decision, 
appeal, and appealable decision to the Discretionary Reviewing Officer 
to determine whether discretionary review of the appeal decision should 
be conducted.
    (2) One day after issuance of a Chief's decision that is eligible 
for discretionary review under Sec.  214.8(b)(2), the Chief shall send 
the decision to the Discretionary Reviewing Officer to determine 
whether discretionary review should be conducted.
    (b) Criteria for determining whether to conduct discretionary 
review. In deciding whether to conduct discretionary review, the 
Discretionary Reviewing Officer should, at a minimum, consider the 
degree of controversy surrounding the decision, the potential for 
litigation, and the extent to which the decision establishes precedent 
or new policy.
    (c) Time period. Upon receipt of the appeal decision, appeal, and 
appealable decision or Chief's decision, the Discretionary Reviewing 
Officer shall have 30 days to determine whether to conduct 
discretionary review and may request the appeal record or the record 
related to the Chief's decision during that time to assist in making 
that determination. If a request for the record is made, it must be 
transmitted to the Discretionary Reviewing Officer within 5 days.
    (d) Notification. The Discretionary Reviewing Officer shall notify 
the parties and the Appeal Deciding Officer in writing of a decision to 
conduct discretionary review. The Discretionary Reviewing Officer may 
notify the parties and the Appeal Deciding Officer of a decision not to 
conduct discretionary review within 30 days. If the Discretionary 
Reviewing Officer takes no action within 30 days of receipt of the 
appeal decision, appeal, and appealable decision or Chief's decision, 
the appeal decision or Chief's decision shall constitute USDA's final 
administrative decision.
    (e) Issuance of a discretionary review decision. The Discretionary 
Reviewing Officer shall have 30 days to issue a discretionary review 
decision after notification of the parties and Appeal Deciding Officer 
has occurred pursuant to Sec.  214.19(d). Discretionary review shall be 
limited to the record. No additional information shall be considered by 
the Discretionary Reviewing Officer. The Discretionary Reviewing 
Officer's decision shall constitute USDA's final administrative 
decision. If a discretionary review decision is not issued within 30 
days following the notification of the decision to conduct 
discretionary review, the appeal decision or Chief's decision shall 
constitute USDA's final administrative decision.


Sec.  214.20  Exhaustion of administrative remedies.

    Judicial review of a decision that is appealable under this part is 
premature unless the plaintiff has exhausted the administrative 
remedies under this part.


Sec.  214.21  Information collection requirements.

    The rules of this part governing appeal of decisions relating to 
occupancy or use of National Forest System lands and resources specify 
the information that an appellant must provide in an appeal. Therefore, 
these rules contain information collection requirements as defined in 5 
CFR part 1320. These information collection requirements are assigned 
Office of Management and Budget Control Number 0596-New.


Sec.  214.22  Applicability and effective date.

    This part prescribes the procedure for administrative review of 
appealable

[[Page 62711]]

decisions and Chief's decisions set forth in Sec.  214.4 issued on or 
after [Date 30 days from date of publication of the final rule in the 
FEDERAL REGISTER].

PART 215--NOTICE, COMMENT, AND APPEAL PROCEDURES FOR NATIONAL 
FOREST SYSTEM PROJECTS AND ACTIVITIES

    4. The authority citation for part 215 continues to read as 
follows:

    Authority: 16 U.S.C. 472, 551; sec. 322, Pub. L. 102-381 
(Appeals Reform Act), 106 Stat. 1419 (16 U.S.C. 1612 note).

    5. In Sec.  215.1, revise paragraph (b) to read as follows:


Sec.  215.1  Purpose and scope.

* * * * *
    (b) Scope. Notice of proposed actions and opportunity to comment 
provide an opportunity for the public to provide meaningful input prior 
to the decision on projects and activities implementing land management 
plans. The rules of this part complement other opportunities to 
participate in the Forest Service's project and activity planning, such 
as those provided by the National Environmental Policy Act of 1969 
(NEPA) and its implementing regulations at 40 CFR parts 1500-1508 and 
36 CFR part 220; the National Forest Management Act (NFMA) and its 
implementing regulations at 36 CFR part 219; and the regulations at 36 
CFR part 216 governing public notice and comment for certain Forest 
Service directives.
    6. In Sec.  215.2, revise the definitions for ``Appeal,'' ``Appeal 
Deciding Officer,'' ``Appeal Record,'' ``Appellant,'' and ``Responsible 
Official'' to read as follows:


Sec.  215.2  Definitions.

* * * * *
    Appeal--A document filed with an Appeal Deciding Officer in which 
an individual or entity seeks review of a Forest Service decision under 
this part.
    Appeal Deciding Officer--The U.S. Department of Agriculture (USDA) 
or Forest Service employee who is one organizational level above the 
Responsible Official and who is authorized to issue an appeal decision 
under this part.
* * * * *
    Appeal Record--Documentation and other information filed with the 
Appeal Deciding Officer within the relevant time period by parties to 
an appeal and upon which review of an appeal is conducted.
* * * * *
    Appellant--An individual or entity that has filed an appeal of a 
decision under this part.
* * * * *
    Responsible Official--The Forest Service employee who issued a 
decision that may be appealed under this part.
    7. In Sec.  215.11, revise paragraph (d) to read as follows:


Sec.  215.11  Decisions subject to appeal.

* * * * *
    (d) Decisions may not be appealed by an appellant under more than 
one part of this chapter. Parties eligible to appeal a decision under 
more than one part in this chapter must elect the part under which they 
will pursue their appeal. Once an election is made, parties may not 
appeal the decision under the parts they did not elect.
    8. In Sec.  215.14, revise paragraph (b)(5) to read as follows:


Sec.  215.14  Appeal content.

* * * * *
    (b) * * *
    (5) The regulation under which the appeal is being filed if there 
is an option to file under more than one;
* * * * *
    9. In Sec.  215.15, revise paragraph (c) to read as follows:


Sec.  215.15  Appeal time periods and process.

* * * * *
    (c) Evidence of timely filing. Parties to an appeal are responsible 
for ensuring timely filing of appeal documents. Questions regarding 
whether an appeal document has been timely filed shall be resolved by 
the Appeal Deciding Officer based on the following indicators:
    (1) The date of the U.S. Postal Service postmark for an appeal 
received before the close of the fifth business day after the appeal 
filing date;
    (2) The electronically generated posted date and time for e-mail 
and facsimiles;
    (3) The shipping date for delivery by private carrier for an appeal 
received before the close of the fifth business day after the appeal 
filing date; or
    (4) The official agency date stamp showing receipt of hand 
delivery.
* * * * *

PART 218--PREDECISIONAL ADMINISTRATIVE REVIEW PROCESSES

    10. The authority citation for part 218 continues to read as 
follows:

    Authority: Pub. L. 108-148; 117 Stat. 1887 (Healthy Forests 
Restoration Act of 2003).

    11. In Sec.  218.2, revise the definitions for ``Objection,'' 
``Objector,'' ``Responsible official,'' and ``Reviewing officer'' to 
read as follows:


Sec.  218.2  Definitions.

* * * * *
    Objection: A document filed with a reviewing officer by an 
individual or entity seeking predecisional administrative review of a 
proposed authorized hazardous fuel reduction project as defined in the 
HFRA.
* * * * *
    Objector: An individual or entity that has filed an objection to a 
proposed authorized hazardous fuel reduction project.
* * * * *
    Responsible official: The Forest Service employee who may approve 
proposed authorized hazardous fuel reduction projects subject to 
objections under this part.
    Reviewing officer: The U.S. Department of Agriculture (USDA) or 
Forest Service employee who is one organizational level above the 
responsible official and who is authorized to review objections filed 
under this part.
    12. In Sec.  218.10, revise paragraph (c) to read as follows:


Sec.  218.10  Objection time periods and process.

* * * * *
    (c) Evidence of timely filing. Participants in the objection 
process are responsible for ensuring timely filing of objection 
documents. Questions regarding whether an objection document has been 
timely filed shall be resolved by the reviewing officer based on the 
following indicators:
    (1) The date of the U.S. Postal Service postmark for an objection 
received before the close of the fifth business day after the objection 
filing date;
    (2) The electronically generated posted date and time for e-mail 
and facsimiles;
    (3) The shipping date for delivery by private carrier for an 
objection received before the close of the fifth business day after the 
objection filing date; or
    (4) The official agency date stamp showing receipt of hand 
delivery.

PART 222--RANGE MANAGEMENT

    13. The authority citation for part 222 is revised to read as 
follows:

    Authority: 7 U.S.C. 1010-1012; 7 U.S.C. 5101-5106; 16 U.S.C. 
551, 572, 580l; 31 U.S.C. 9701; 43 U.S.C. 1751, 1752, 1901; E.O. 
12548 (51 FR 5985).

    14. The authority citation for subpart C of part 222 is revised to 
read as follows:


[[Page 62712]]


    Authority: 16 U.S.C. 551; 31 U.S.C. 9701; 43 U.S.C. 1751, 1752, 
1901; E.O. 12548 (51 FR 5985).

    15. Add a new subpart D to Part 222 to read as follows:

Subpart D--Mediation of Term Grazing Permit Disputes

Sec.
222.60 Decisions subject to mediation
222.61 Parties.
222.62 Stay of appeal.
222.63 Confidentiality.
222.64 Records.
222.65 Costs.
222.66 Ex parte communications.

    Authority: 7 U.S.C. 5101-5106; 16 U.S.C. 472,551.

Subpart D--Mediation of Term Grazing Permit Disputes


Sec.  222.60  Decisions subject to mediation.

    The holder of a term grazing permit issued in a State with a 
mediation program certified by the U.S. Department of Agriculture may 
request mediation of a dispute relating to a decision to suspend or 
cancel the permit as authorized by 36 CFR 222.4(a)(2)(i), (ii), (iv), 
and (v) and (a)(3) through (a)(6). Any request for mediation must be 
included in an appeal of the decision to suspend or cancel the permit 
filed in accordance with 36 CFR part 214.


Sec.  222.61  Parties.

    Only the following may be parties to mediation of a term grazing 
permit dispute:
    (a) A mediator authorized to mediate under a State mediation 
program certified by the U.S. Department of Agriculture;
    (b) The Chief, Forest Service, or other Forest Service employee who 
made the decision being mediated or his or her designee;
    (c) The holder whose term grazing permit is the subject of the 
decision and who has requested mediation in an appeal filed in 
accordance with the procedures at 36 CFR part 214;
    (d) That holder's creditors, if applicable; and
    (e) Legal counsel, if retained. The Forest Service will have legal 
representation in the mediation only if the holder has legal 
representation in the mediation.


Sec.  222.62  Stay of appeal.

    If an appellant requests mediation of a decision subject to 
mediation under Sec.  222.60 in an appeal filed under 36 CFR part 214, 
the Appeal Deciding Officer shall immediately notify all parties to the 
appeal that all appeal deadlines are automatically stayed for 45 days 
to allow for mediation. If a mediated agreement is not reached in 45 
days, the Appeal Deciding Officer may extend the automatic stay for 
another 15 days if there is a reasonable possibility that a mediated 
agreement can be achieved within that timeframe. If an agreement is not 
achieved at the end of the 45- or 60-day mediation process, the Appeal 
Deciding Officer shall immediately notify all parties to the appeal 
that mediation was unsuccessful, that the stay has expired, and that 
the time periods and procedures applicable to an appeal under 36 CFR 
part 214 are reinstated.


Sec.  222.63  Confidentiality.

    Mediation sessions and dispute resolution communications as defined 
in 5 U.S.C. 571(5) shall be confidential. Any mediation agreement 
signed by a Forest Service official and the holder of a term grazing 
permit is subject to public disclosure.


Sec.  222.64  Records.

    Notes taken or factual material shared during mediation sessions 
shall not be included in the appeal record prepared in accordance with 
the procedures at 36 CFR part 214.


Sec.  222.65  Costs.

    The Forest Service shall cover only those costs incurred by its own 
employees in mediation sessions.


Sec.  222.66  Ex parte communications.

    The Chief, Forest Service, or other Forest Service employee who 
made the decision being mediated or his or her designee shall not 
discuss mediation with the Appeal Deciding Officer, except to request 
an extension of time or to communicate the results of mediation.

PART 228--MINERALS

    16. The authority citation for part 228 is revised to read as 
follows:

    Authority: 16 U.S.C. 478, 551; 30 U.S.C. 226, 352, 601, 611; 94 
Stat. 2400.

Subpart A--Locatable Minerals

    17. Revise Sec.  228.14 to read as follows:


Sec.  228.14  Appeals.

    Appeal of decisions of an authorized officer made pursuant to this 
subpart is governed by 36 CFR part 214 or 215.

Subpart C--Disposal of Mineral Materials

    18. In Sec.  228.65, revise paragraph (b)(4) to read as follows:


Sec.  228.65  Payment for sales.

* * * * *
    (b) * * *
    (4) If the purchaser fails to make payments when due, the contract 
will be considered breached, the authorized officer will cancel the 
contract, and all previous payments will be forfeited without prejudice 
to any other rights and remedies of the United States.
* * * * *
    19. In Sec.  228.66 revise paragraph (c) to read as follows:


Sec.  228.66  Refunds.

* * * * *
    (c) Cancellation. (1) If the contract is cancelled by the 
authorized officer for reasons which are beyond the purchaser's 
control; or
    (2) If the contract is cancelled by mutual agreement. This refund 
provision is not a warranty that a specific quantity of material exists 
in the sale area.

Subpart E--Oil and Gas Resources

    20. In Sec.  228.107, revise paragraph (c) to read as follows:


Sec.  228.107  Review of surface use plan of operations.

* * * * *
    (c) Notice of decision. The authorized Forest officer shall give 
public notice of the decision on a surface use plan of operations and 
include in the notice that the decision is subject to appeal under 36 
CFR part 214 or 215.
* * * * *

PART 241--FISH AND WILDLIFE

    21. The authority citation for Part 241 continues to read as 
follows:

    Authority: 16 U.S.C. 472, 539, 551, 683.

Subpart B--Conservation of Fish, Wildlife, and Their Habitat, 
Chugach National Forest, Alaska

    22. In Sec.  241.22, revise paragraphs (e) and (f) to read as 
follows:


Sec.  241.22  Consistency determinations.

* * * * *
    (e) Subject to valid existing rights, the responsible Forest 
Officer may revoke, suspend, restrict, or require modification of any 
activity if it is determined that such measures are required to 
conserve wildlife, fish, or their habitat within areas of the Chugach 
National Forest subject to this subpart. Prior to taking action to 
revoke, suspend, restrict, or require modification of an activity under 
this section, the responsible Forest Officer shall give affected 
parties reasonable prior notice and an opportunity to comment, unless 
it is determined that

[[Page 62713]]

doing so would likely result in irreparable harm to conservation of 
fish, wildlife, and their habitat.
    (f) Decisions made pursuant to this section are subject to appeal 
only as provided in 36 CFR part 214.
* * * * *

PART 251--LAND USES

    23. The authority citation for part 251 continues to read as 
follows:

    Authority: 16 U.S.C. 472, 479b, 551, 1134, 3210, 6201-13; 30 
U.S.C. 1740, 1761-1771.

Subpart A--Miscellaneous Land Uses

    24. The authority citation for part 251, subpart A, continues to 
read as follows:

    Authority: 7 U.S.C. 1011; 16 U.S.C. 518, 551, 678a; Pub. L. 76-
867, 54 Stat. 1197.

    25. Amend Sec.  251.15 to revise paragraphs (a)(2)(iv) and (a)(3) 
to read as follows:


Sec.  251.15  Conditions, rules, and regulations to govern exercise of 
mineral rights reserved in conveyances to the United States.

    (a) * * *
    (2) * * *
    (iv) Failure to comply with the terms and conditions of the permit 
shall be cause for revocation of all rights to use, occupy, or disturb 
the surface of the lands covered by the permit, but in the event of 
revocation, a new permit shall be issued upon application when the 
causes for revocation of the preceding permit have been satisfactorily 
remedied and the United States has been reimbursed for any damages it 
has incurred from the noncompliance.
    (3) All structures, other improvements, and materials shall be 
removed from the lands within one year after the date of revocation of 
the permit.
* * * * *

Subpart B--Special Uses

    26. The authority citation for part 251, subpart B, continues to 
read as follows:

    Authority: 16 U.S.C. 460l-6a, 460l-6d, 472, 497b, 497c, 551, 
580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1771.

    27. In Sec.  251.51, revise the definitions for ``Holder,'' 
``Revocation,'' ``Special use authorization,'' and ``Termination'' to 
read as follows:


Sec.  251.51  Definitions.

* * * * *
    Holder--an individual or entity that holds a valid special use 
authorization.
* * * * *
    Revocation--the cessation, in whole or in part, of a special use 
authorization by action of an authorized officer before the end of the 
specified period of use or occupancy for reasons set forth in Sec.  
251.60(a)(1)(i), (a)(2)(i), (g), and (h) of this subpart.
* * * * *
    Special use authorization--a written permit, term permit, lease, or 
easement that authorizes use or occupancy of National Forest System 
lands and specifies the terms and conditions under which the use or 
occupancy may occur.
* * * * *
    Termination--the cessation of a special use authorization by 
operation of law or by operation of a fixed or agreed-upon condition, 
event, or time as specified in the authorization, which does not 
require a decision by an authorized officer to take effect, such as 
expiration of the authorized term; change in ownership or control of 
the authorized improvements; or change in ownership or control of the 
holder of the authorization.
* * * * *
    28. In Sec.  251.54, revise the last sentence of paragraph 
(g)(3)(iii) to read as follows:


Sec.  251.54  Proposal and application requirements and procedures.

* * * * *
    (g) * * *
    (3) * * *
    (iii) * * * A denial of an application in paragraphs (g)(3)(ii)(A) 
through (g)(3)(ii)(H) of this section constitutes final agency action, 
is not subject to administrative appeal, and is immediately subject to 
judicial review.
* * * * *
    29. In Sec.  251.60, revise paragraphs (a)(1)(ii), (a)(2)(ii), and 
(h)(2) to read as follows:


Sec.  251.60  Termination, revocation, and suspension.

    (a) * * *
    (1) * * *
    (ii) Judicial review. Revocation or suspension of a special use 
authorization under this paragraph constitutes final agency action, is 
not subject to administrative appeal, and is immediately subject to 
judicial review.
* * * * *
    (2) * * *
    (ii) Administrative review. Except for revocation or suspension of 
an easement issued pursuant to Sec.  251.53(e) or Sec.  251.53(l) of 
this subpart, revocation or suspension of a special use authorization 
under this paragraph is subject to appeal pursuant to 36 CFR part 214.
* * * * *
    (h) * * *
    (2) Before any such easement is revoked upon abandonment, the owner 
of the easement shall be given notice and, upon the owner's request 
made within 60 days after receipt of the notice, shall be given an 
appeal in accordance with the provisions of 36 CFR part 214.
* * * * *

Subpart C--[Removed and Reserved]

    30. Remove and reserve subpart C of part 251.

Subpart E--Revenue-Producing Visitor Services in Alaska

    31. The authority citation for part 251, subpart E, continues to 
read as follows:

    Authority:  16 U.S.C. 3197.

    32. Revise Sec.  251.126 to read as follows:


Sec.  251.126  Appeals.

    Decisions related to the issuance of special use authorizations in 
response to written solicitations by the Forest Service under this 
subpart or related to the modification of special use authorizations to 
reflect historical use are subject to administrative appeal under 36 
CFR part 214.

PART 254--LANDOWNERSHIP ADJUSTMENTS

Subpart A--Land Exchanges

    33. The authority citation for part 254, subpart A, is revised to 
read as follows:

    Authority:  7 U.S.C. 428a(a) and 1011; 16 U.S.C. 484a, 485, 486, 
516, 551, 555a; 43 U.S.C. 1701, 1715, 1716, 1740.

    34. In Sec.  254.4, revise paragraph (g) to read as follows:


Sec.  254.4  Agreement to initiate an exchange.

* * * * *
    (g) The withdrawal from an exchange proposal by the authorized 
officer at any time prior to the notice of decision pursuant to Sec.  
254.13 of this subpart is not appealable under 36 CFR part 214 or 215.
    35. In Sec.  254.13, revise paragraph (b) to read as follows:


Sec.  254.13  Approval of exchanges; notice of decision.

* * * * *
    (b) The decision to approve or disapprove an exchange proposal 
shall be subject to appeal as provided under 36 CFR part 214 or 215 for 
45 days after the date of publication of a notice of availability of 
the decision.
    36. In Sec.  254.14, revise paragraph (b)(6) to read as follows:

[[Page 62714]]

Sec.  254.14  Exchange agreement.

* * * * *
    (b) * * *
    (6) In the event of an appeal under 36 CFR part 214 or 215, a 
decision to approve an exchange proposal pursuant to Sec.  254.13 of 
this subpart is upheld; and
* * * * *
    37. In Sec.  254.15, revise the last sentence of paragraph (c)(2) 
to read as follows:


Sec.  254.15  Title standards.

* * * * *
    (c) * * *
    (2) * * * If an agreement cannot be reached, the authorized officer 
shall consider other alternatives to accommodate the authorized use or 
shall determine whether there are specific and compelling reasons in 
the public interest for revoking the authorization for that use 
pursuant to 36 CFR 251.60.

PART 292--NATIONAL RECREATION AREAS

Subpart C--Sawtooth National Recreation Area--Private Lands

    38. The authority citation for part 292, subpart C, continues to 
read as follows:

    Authority:  Sec. 4(a), Act of Aug. 22, 1972 (86 Stat. 613).

    39. In Sec.  292.15, revise paragraph (l) to read as follows:


Sec.  292.15  General provisions--procedures.

* * * * *
    (l) Denial or revocation of a certification of compliance under 
this subpart is subject to appeal under 36 CFR part 214.

Subpart D--Sawtooth National Recreation Area--Federal Lands

    40. The authority citation for part 292, subpart D, is revised to 
read as follows:

    Authority:  16 U.S.C. 460aa-10, 478, 551.

    41. In Sec.  292.18, revise paragraph (f) to read as follows:


Sec.  292.18  Mineral resources.

* * * * *
    (f) Operating plans--suspension, revocation, or modification. The 
authorized officer may suspend or revoke authorization to operate in 
whole or in part where such operations are causing substantial 
impairment which cannot be mitigated. At any time during operations 
under an approved operating plan, the operator may be required to 
modify the operating plan to minimize or avoid substantial impairment 
of the values of the SNRA.
* * * * *

    Dated: September 16, 2011.
Thomas L. Tidwell,
Chief, Forest Service.
[FR Doc. 2011-24366 Filed 10-7-11; 8:45 am]
BILLING CODE 3410-11-P