Appeal of Decisions Relating to Occupancy or Use of National Forest System Lands and Resources, 62694-62714 [2011-24366]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

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


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 https://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