[Code of Federal Regulations]
[Title 36, Volume 2]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 36CFR251]

[Page 315-326]
 
              TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY
 
          CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE
 
PART 251--LAND USES--Table of Contents
 
Subpart C--Appeal of Decisions Relating to Occupancy and Use of National 
Forest System Lands

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

    Source: 54 FR 3362, Jan. 23, 1989, unless otherwise noted.

Sec. 251.80  Purpose and scope.

    (a) This subpart provides a process by which those who hold or, in 
certain instances, those who apply for written authorizations to occupy 
and use National Forest System lands, may appeal a written decision by 
an authorized Forest Service line officer with regard to issuance, 
approval, or administration of the written instrument. The rules in the 
subpart establish who may appeal under these rules, the kinds of 
decisions that can and cannot be appealed, the responsibilities of 
parties to the appeal, and the various procedures and timeframes that 
will govern the conduct of appeals under this subpart.
    (b) The rules in this subpart seek to offer appellants a fair and 
deliberate process for appealing and obtaining administrative review of 
decisions regarding written instruments that authorize the occupancy and 
use of National Forest System lands.

Sec. 251.81  Definitions and terminology.

    For the purposes of this subpart, the following terms are defined:
    Appeal. A request to a higher ranking officer for relief from a 
written decision filed under this subpart by an applicant for or a 
holder of a written instrument issued or approved by a Forest Service 
line officer.
    Appeal decision. The written decision rendered by the Reviewing 
Officer on an appeal for relief under this subpart. The use of this term 
is limited to the final decision of a Reviewing Officer and does not 
refer to a stay decision or to any other determinations or procedural 
orders made on the conduct of an appeal (Sec. 251.99).
    Appeal record. The documents submitted to the Reviewing Officer by 
an appellant, intervenor, or Deciding Officer (Sec. 251.98).
    Appellant. An eligible applicant for or holder of a written 
instrument issued for the occupancy and use of National Forest System 
land (or their authorized agent or representative) who files an appeal 
pursuant to the provisions of this subpart (Sec. 251.86).
    Deciding officer. The Forest Service line officer who makes a 
decision related to issuance, approval, or administration of an 
authorization to occupancy and use National Forest System lands that is 
appealed under this subpart.
    Decisions regarding a written instrument or authorization to occupy 
and use National Forest System lands. A broad, all inclusive phrase used 
throughout this subpart to connote the full range of actions and 
decisions a forest officer takes to issue written instruments, or to 
manage authorized uses of National Forest System lands, including, but 
not limited to, enforcement of terms and conditions, and suspension, 
cancellation, and/or termination of an authorization.
    Forest Service line officer. The Chief of the Forest Service or a 
Forest Service official who serves in a direct line of command from the 
Chief and who has the delegated authority to make and execute decisions 
under this subpart. Specifically, for the purposes of this subpart, a 
Forest Service employee who holds one of the following offices and 
titles: District Ranger, Forest Supervisor, Deputy Forest Supervisor, 
Regional Forester, Deputy Regional Forester, Deputy Chief, Associate 
Deputy Chief, Associate Chief, or the Chief of the Forest Service.
    Intervenor. An individual who, or organization that, is an applicant 
for or holder of the written instrument, or a

[[Page 316]]

similar instrument, issued by the Forest Service that is the subject of 
an appeal, and who has an interest that could be affected by an appeal, 
and who has made a timely request to intervene in that appeal, and who 
has been granted intervenor status by the Reviewing Officer 
(Sec. 251.96).
    Issuance of a written instrument of authorization. Applies both to 
decisions to grant and to deny a written instrument or authorization.
    Notice of appeal. The document prepared and filed by an appellant to 
dispute a decision subject to review under this subpart (Sec. 251.90).
    Oral presentation. An informal meeting (in person or by telephone) 
at which an appellant, intervenor, and/or Deciding Officer may present 
information related to an appeal to the Reviewing Officer (Sec. 251.97).
    Parties to an appeal. The appellant(s), intervenor(s), and the 
Deciding Officer.
    Responsive statement. A written document prepared by a Deciding 
Officer that responds to the notice of appeal record by an appellant 
(Sec. 251.94).
    Reviewing Officer. The officer at the next administrative level 
above that of the Deciding Officer who conducts appeal proceedings, 
makes all necessary rulings regarding conduct of an appeal, and issues 
the appeal decision.
    Written instrument or authorization. Any of those kinds of documents 
listed in Sec. 251.82 of this subpart issued or approved by the Forest 
Service authorizing an individual, organization or other entity to 
occupy and use National Forest System lands and resources.

[54 FR 3362, Jan. 23, 1989; 54 FR 13807, Apr. 5, 1989]

Sec. 251.82  Appealable decisions.

    (a) The rules of this subpart govern appeal of written decisions of 
Forest Service line officers related to issuance, denial, or 
administration of the following written instruments to occupy and use 
National Forest System lands, including but not limited to:
    (1) Permits for ingress and egress to intermingled and adjacent 
private lands across National Forest System lands, 36 CFR 212.8 and 
212.10.
    (2) Permits and occupancy agreements on National Grasslands and 
other lands administered under the provisions of title III of Bankhead-
Jones Farm Tenant Act issued under 36 CFR 213.3.
    (3) Grazing and livestock use permits issued under 36 CFR part 222, 
subpart A.
    (4) Mining plans of operation under 36 CFR part 228, subpart A.
    (5) Mining operating plans for the Sawtooth National Recreation Area 
issued under 36 CFR 292.17 and 292.18.
    (6) Permits and agreements regarding mineral materials (petrified 
wood and common varieties of sand, gravel, stone, pumice, pumicite, 
cinder, clay and other similar materials) under 36 CFR 228, subpart C.
    (7) Permits authorizing exercise of mineral rights reserved in 
conveyance to the United States issued under 36 CFR part 251, subpart A.
    (8) Special use authorizations issued under 36 CFR part 251, subpart 
B, except, as provided in Sec. 251.60(g), for suspension or termination 
of easements issued pursuant to 36 CFR 251.53(e) and (e)(1).
    (9) Permits for uses in Wilderness Areas issued under 36 CFR 293.3.
    (10) Permits to excavate and/or remove archaeological resources 
issued under the Archaeological Resources Protection Act 1979 and 36 CFR 
part 296.
    (11) Approval/non-approval of Surface Use Plans of Operations 
related to the authorized use and occupancy of a particular site or 
area.
    (12) Decisions related to the standards for the use, subdivision, 
and development of privately owned property within the boundaries of the 
Sawtooth National Recreation Area pursuant to 36 CFR part 292, subpart 
C.
    (b) Written decisions on any of the matters of the type listed in 
paragraph (a) of this section issued by a Forest Service staff officer 
with delegated authority to act for a Forest Service line officer are 
considered to be decisions of the line officer.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]

[[Page 317]]

Sec. 251.83  Decisions not appealable.

    The following decisions are not appealable under this subpart:
    (a) Decisions appealable to the Agriculture Board of Contract 
Appeals, USDA, under 7 CFR part 24.
    (b) Decisions involving Freedom of Information Act denials under 7 
CFR part 1 or Privacy Act determinations under 7 CFR 1.118.
    (c) Decisions for which the jurisdiction of another Government 
agency, the Comptroller General, or a court to hear and settle disputes 
supersedes that of the Department of Agriculture.
    (d) Recommendations of Forest Service line officers to higher 
ranking Forest Service line officers or to other entities having final 
authority to implement the recommendation in question.
    (e) Decisions appealable under separate administrative proceedings, 
including, but not limited to, those under 36 CFR 223.117 
(Administration of Cooperative for Federal Sustained Yield Units); 7 CFR 
21.104 (Eligibility for Recreation Payment of Amount); and 4 CFR part 21 
(Bid Protests).
    (f) Decisions pursuant to Office of Management and Budget Circular 
A-76, Performance of Commercial Activities.
    (g) Decisions concerning contracts under the Federal Property and 
Administrative Services Act of 1949, as amended.
    (h) Decisions covered by the Contract Disputes Act.
    (i) Decisions involving Agency personnel matters.
    (j) Decisions where relief sought is reformation of a contract or 
award of monetary damages.
    (k) Decisions made during the preliminary planning process pursuant 
to 36 CFR part 219 and 40 CFR parts 1500-1508 that precede decisions to 
implement the proposed action.
    (l) Decisions related to National Forest land and resource 
management plans and projects only reviewable under 36 CFR part 217.
    (m) Decisions related to rehabilitation of National Forest System 
lands and recovery of forest resources resulting from natural disasters 
or other natural phenomena such as wildfires, severe wind, earthquakes, 
and flooding when the Regional Forester or, in situations of national 
significance, the Chief of the Forest Service determines and gives 
notice that good cause exists to exempt such decisions from appeal under 
this subpart.
    (n) Decisions imposing penalties for archaeological violations under 
36 CFR 296.15 or for violations of prohibitions and orders under 36 CFR 
part 261.
    (o) Reaffirmation of prior decisions.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]

Sec. 251.84  Obtaining notice.

    (a) A Deciding Officer shall promptly give written notice of 
decisions subject to appeal under this subpart to applicants and holders 
defined in Sec. 251.86 of this subpart and to any holder of like 
instruments who has made a written request to be notified of a specific 
decision. The notice shall include a statement of the Deciding Officer's 
willingness to meet with applicants or holders to hear and discuss any 
concerns or issues related to the decision (Sec. 251.93). The notice 
shall also specify the name of the officer to whom an appeal of the 
decision may be filed, the address, and the deadline for filing an 
appeal.
    (b) In States with Department of Agriculture certified mediation 
programs, a Deciding Officer shall also give written notice of the 
opportunity for the affected term grazing permit holder to request 
mediation of decisions to suspend or cancel term grazing permits, in 
whole or in part, pursuant to 36 CFR 222.4(a)(2)(i), (ii), (iv), (v) and 
(a)(3) through (a)(6). Such notice must inform the permit holder that, 
if mediation is desired, the permit holder must request mediation as 
part of the filing of an appeal.

[54 FR 3362, Jan. 23, 1989, as amended at 64 FR 37846, July 14, 1999]

Sec. 251.85  Election of appeal process.

    (a) No decision can be appealed by the same person under both this 
subpart and part 217 of this chapter.
    (b) Should a decision be reviewable under this subpart as well as 
part 217 of this chapter, a party who qualifies to bring an appeal under 
this subpart can elect which process to use for obtaining review of a 
decision, but in so doing, the appellant thereby forfeits all right to 
appeal the same decision under the

[[Page 318]]

other review process. However, a holder who waives the right to appeal 
under the provisions of 36 CFR part 217 may intervene pursuant to 36 CFR 
217.6(b).

Sec. 251.86  Parties.

    Only the following may participate in the appeals process provided 
under this subpart:
    (a) An applicant who, in response to a prospectus or written 
solicitation or other notice by the Forest Service, files a formal 
written request for a written authorization to occupy and use National 
Forest System land covered under Sec. 251.82 of this subpart and
    (1) Was denied the authorization, or
    (2) Was offered an authorization subject to terms and conditions 
that the applicant finds unreasonable or impracticable.
    (b) The signatory(ies) or holder(s) of a written authorization to 
occupy and use National Forest System land covered under Sec. 251.82 of 
this subpart who seeks relief from a written decision related to that 
authorization.
    (c) An intervenor as defined in Sec. 251.81 of this subpart.
    (d) The Deciding Officer who made the decision being appealed under 
this subpart.

Sec. 251.87  Levels of appeal.

    (a) Decisions made by the Chief. If the Chief of the Forest Service 
is the Deciding Officer, the appeal is to the Secretary of Agriculture. 
Review by the Secretary is discretionary. Within 15 calendar days of 
receipt of a timely notice of appeal, the Secretary shall determine 
whether or not to review the decision. If the Secretary has not decided 
to review the Chief's decision by the expiration of the 15-day period, 
the requester(s) shall be notified by the Secretary's office that the 
Chief's decision is the final administrative decision of the Department 
of Agriculture. When the Secretary elects to review an initial decision 
made by the Chief, the Secretary shall conduct the review in accordance 
with the first level appeal procedures outlined in this rule.
    (b) Decisions made By Forest Supervisors and Regional Foresters. 
Only one level of appeal is available on written decisions by Forest 
Service line officers below the level of the Chief and above the level 
of the District Ranger. The levels of available appeal are as follows:
    (1) If the decision is made by a Forest Supervisor, the appeal is 
filed with the Regional Forester;
    (2) If the decision is made by a Regional Forester, the appeal is 
filed with the Chief of the Forest Service.
    (c) Decisions made by the District Ranger. Two levels of appeal are 
available for written decisions by District Rangers.
    (1) The appeal for initial review is filed with the Forest 
Supervisor.
    (2) The appeal for a second level of review is filed with the 
Regional Forester within 15 days of the first level appeal decision. 
Upon receiving such a request, the Regional Forester shall promptly 
request the first level file from the Forest Supervisor. The review 
shall be conducted on the existing record and no additional information 
shall be added to the file.
    (d) Discretionary review of dismissal decisions. Dismissal decisions 
rendered by Forest Service line officers pursuant to this part 
(Sec. 251.92) are subject to only one level of discretionary review 
(Sec. 251.100) as follows:
    (1) If the Reviewing Officer was the Forest Supervisor, the Regional 
Forester has discretion to review.
    (2) If the Reviewing Officer was the Regional Forester, the Chief 
has discretion to review.
    (3) If the Reviewing Officer was the Chief, the Secretary of 
Agriculture has discretion to review.
    (e) Discretionary review of appeal decisions. Appeal decisions 
rendered by Regional Foresters and the Chief pursuant to this part are 
subject to only one level of discretionary review as follows:
    (1) If the Reviewing Officer is the Regional Forester, the Chief of 
the Forest Service has discretion to review.
    (2) If the Reviewing Officer is Chief, the Secretary of Agriculture 
has discretion to review.
    (3) A Regional Forester's decision on a second-level appeal 
constitutes the final administrative determination of the Department of 
Agriculture on the

[[Page 319]]

appeal and is not subject to further review by a higher level officer 
under this subpart.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]

Sec. 251.88  Filing procedures.

    (a) Filing procedures. In order to appeal a decision under this 
subpart, an appellant must:
    (1) File a notice of appeal in accordance with Sec. 251.90 of this 
subpart with the next higher line officer as identified in Sec. 251.87.
    (2) File the notice of appeal within 45 days of the date on the 
notice of the written decision being appealed (Sec. 251.84); and
    (3) Simultaneously send a copy of the notice of appeal to the 
Deciding Officer.
    (b) Evidence of timely filing. It is the responsibility of those 
filing an appeal to file the notice of appeal by the end of the filing 
period. In the event of questions, legible postmarks will be considered 
evidence of timely filing. Where postmarks are illegible, the Reviewing 
Officer shall rule on the timeliness of the notice of appeal. Untimely 
submissions are subject to dismissal as provided for in 
Sec. 251.92(a)(2).
    (c) Computation of time period for filing. (1) The time period for 
filing a notice of appeal of a decision under this subpart begins on the 
first day after the Deciding Officer's written notice of the decision. 
All other time periods applicable to this subpart also will be computed 
to begin on the first day following an event or action related to the 
appeal.
    (2) Time periods applicable to this subpart are computed using 
calendar days. Saturdays, Sundays, or Federal holidays are included in 
computing the time allowed for filing an appeal; however, when the 
filing period would expire on a Saturday, Sunday, or Federal holiday the 
filing time is extended to the end of the next Federal working day.

Sec. 251.89  Time extensions.

    (a) Filing of notice of appeal. Time for filing a notice of appeal 
is not extendable.
    (b) All other time periods. Appellants, Intervenors, Deciding 
Officers, and Reviewing Officers shall meet the time periods specified 
in the rules of this subpart, unless a Reviewing Officer has extended 
the time as provided in this paragraph. Except as noted in paragraph (a) 
of this section and as prohibited at the discretionary review level 
(Sec. 251.100), the Reviewing Officer may extend all other time periods 
under this subpart.
    (1) For appeals of initial written decisions by the Chief, a 
Regional Forester, or a Forest Supervisor, a Reviewing Officer, where 
good cause exists, may grant a written request for extension of time to 
file a responsive statement or replies thereto. The Reviewing Officer 
shall rule on requests for extensions within 10 days of receipt of the 
request and shall provide written notice of the extension ruling to all 
parties to the appeal.
    (2) Except for discretionary reviews of appeal decisions as provided 
in Sec. 251.100 of this subpart, a Reviewing Officer may extend the time 
period for issuance of the appeal decision, including for purposes of 
allowing additional time for the Deciding Officer to resolve disputed 
issues, as provided in Sec. 251.93 of this subpart.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]

Sec. 251.90  Content of notice of appeal.

    (a) It is the responsibility of an appellant to provide a Reviewing 
Officer sufficient narrative evidence and argument to show why a 
decision by a lower level officer should be reversed or changed.
    (b) An appellant must include the following information in a notice 
of appeal:
    (1) The appellant's name, mailing address, and daytime telephone 
number;
    (2) The title or type of written instrument involved, the date of 
application for or issuance of the written instrument, and the name of 
the responsible Forest Service Officer;
    (3) A brief description and the date of the written decision being 
appealed;
    (4) A statement of how the appellant is adversely affected by the 
decision being appealed;
    (5) A statement of the facts of the dispute and the issue(s) raised 
by the appeal;

[[Page 320]]

    (6) Specific references to any law, regulation, or policy that the 
appellant believes to be violated and the reason for such an allegation.
    (7) A statement as to whether and how the appellant has tried to 
resolve the issue(s) being appealed with the Deciding Officer, the date 
of any discussion, and the outcome of that meeting or contact; and
    (8) A statement of the relief the appellant seeks.
    (c) An appellant may also include one or more of the following in a 
notice of appeal: a request for oral presentation (Sec. 251.97); a 
request for stay of implementation of the decision pending decision on 
the appeal (Sec. 251.91); or, in those States with a Department of 
Agriculture certified mediation program, a request for mediation of 
grazing permit cancellation or suspensions pursuant to Sec. 251.103.

[54 FR 3362, Jan. 23, 1989; 54 FR 13807, Apr. 5, 1989, as amended at 54 
FR 34510, Aug. 21, 1989; 64 FR 37846, July 14, 1999]

Sec. 251.91  Stays.

    (a) A decision may be implemented during the appeal process, unless 
the Reviewing Officer grants a stay or unless a term grazing permit 
holder appeals a decision and simultaneously requests mediation pursuant 
to Sec. 251.103. In the case of mediation requests, a stay is granted 
automatically upon receipt of the notice of appeal for the duration of 
the mediation period as provided in Sec. 251.103.
    (b) An appellant or intervenor may request a stay of a decision at 
any time while an appeal is pending, if the harmful effects alleged 
pursuant to paragraph (c)(3) of this section would occur during pendency 
of the appeal. The Reviewing Officer shall not accept any request to 
stay implementation of a decision that is not scheduled to begin during 
pendency of the appeal.
    (c) To request a stay of decision, an appellant or intervenor must--
    (1) File a written request with the Reviewing Officer;
    (2) Simultaneously send a copy of the stay request to any other 
appellant(s), to intervenor(s), and to the Deciding Officer.
    (3) Provide a written justification of the need for a stay, which at 
a minimum includes the following:
    (i) A description of the specific project(s), activity(ies), or 
action(s) to be stopped.
    (ii) Specific reasons why the stay should be granted in sufficient 
detail to permit the Reviewing Officer to evaluate and rule upon the 
stay request, including at a minimum:
    (A) The specific adverse effect(s) upon the requester;
    (B) Harmful site-specific impacts or effects on resources in the 
area affected by the activity(ies) to be stopped, and
    (C) How the cited effects and impacts would prevent a meaningful 
decision on the merits.
    (d) A Deciding Officer and other parties to an appeal may provide 
the Reviewing Officer with a written response to a stay request. A copy 
of any response must be sent to all parties to the appeal.
    (e) Timeframe. The Reviewing Officer must rule on a stay request no 
later than 10 calendar days from receipt.
    (f) Criteria to consider. In deciding a stay request, a Reviewing 
Officer shall consider:
    (1) Information provided by the requester pursuant to paragraph (c) 
of this section including the validity of any claim of adverse effect on 
the requester;
    (2) The effect that granting a stay would have on preserving a 
meaningful appeal on the merits;
    (3) Any information provided by the Deciding Officer or other party 
to the appeal in response to the stay request; and
    (4) Any other factors the Reviewing Officer considers relevant to 
the decision.
    (g) Notice of decision on a stay request. A Reviewing Officer must 
issue a written decision on a stay request.
    (1) If a stay is granted, the stay shall specify the specific 
activities to be stopped, duration of the stay, and reasons for granting 
the stay.
    (2) If a stay is denied in whole or in part, the decision shall 
specify the reasons for the denial.

[[Page 321]]

    (3) A copy of a decision on a stay request shall be sent to all 
parties to the appeal.
    (h) Duration. A stay shall remain in effect for the 15-day period 
for determining discretionary review (Sec. 251.100), unless changed by 
the Reviewing Officer in accordance with paragraph (i) of this section.
    (i) Change in a stay. A Reviewing Officer may change a stay decision 
in accordance with any terms established in the stay decision itself or 
at any time during pendency of an appeal that circumstances support a 
change of stay. In making any changes to a stay decision, the Reviewing 
Officer must issue a written notice to all parties to the appeal 
explaining the reason for making the changes and setting forth any terms 
or conditions that apply to the change.
    (j) Petitions to change a stay. An appellant or intervenor may 
petition a Reviewing Officer to change or lift a stay at any time during 
the pendency of an appeal. Such petitions must be in writing, must 
explain how circumstances have changed since the stay was imposed, and 
must state why the change in the stay is being requested. The petitioner 
must send a copy of the petition to all parties to the appeal.
    (k) Appeal of stay decision or changes in stay. A Reviewing 
Officer's decision to grant, deny, lift, or otherwise change a stay is 
not subject to further appeal and review, except when the first-level 
Reviewing Officer was the Forest Supervisor. In this instance, the 
Regional Forester has discretion to review.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989; 64 
FR 37846, July 14, 1999]

Sec. 251.92  Dismissal.

    (a) The Reviewing Officer shall dismiss an appeal and close the 
record without a decision on the merits when:
    (1) The appellant is not eligible to appeal a decision under this 
subpart.
    (2) Appellant's notice of appeal is not filed within the required 
time period, or the notice of appeal fails to meet the minimum 
requirements of Sec. 251.90 of this subpart to such an extent that the 
Reviewing Officer lacks adequate information on which to base a 
decision.
    (3) In cases where there is only one appellant, the appellant 
withdraws the appeal.
    (4) The requested relief cannot be granted under existing law, fact, 
or regulation.
    (5) The decision is excluded from appeal under this subpart 
(Sec. 251.83).
    (6) The Deciding Officer has withdrawn the decision under appeal.
    (7) A request for review of the same decision has been filed by the 
same person under part 217 of this chapter.
    (8) A mediated agreement is reached (Sec. 251.103).
    (b) The Reviewing Officer shall give written notice of dismissal 
that includes an explanation of why the appeal is dismissed.
    (c) A Reviewing Officer's dismissal decision is subject to 
discretionary review at the next administrative level as provided for in 
Sec. 251.87(d), except when a dismissal decision results from withdrawal 
of an appeal by an appellant, withdrawal of the initial decision by the 
Deciding Officer, or a mediated resolution of the dispute.

[54 FR 3362, Jan. 23, 1989, as amended at 55 FR 7896, Mar. 6, 1990; 64 
FR 37846, July 14, 1999]

Sec. 251.93  Resolution of issues.

    (a) Authorized Forest Service officers shall, to the extent 
practicable and consistent with the public interest, consult and meet in 
person, or by phone, with holders of written instruments prior to 
issuing written decisions related to administration of a written 
authorization. The purpose of such meetings is to discuss any issues or 
concerns related to the authorized use and to reach a common 
understanding and agreement where possible prior to issuance of a 
written decision.
    (b) When decisions are appealed, the Deciding Officer may discuss 
the appeal with the appellant(s) and intervenor(s) together or 
separately to narrow issues, agree on facts, and explore opportunities 
to resolve the issues by means other than review and decision on the 
appeal, including mediation pursuant to Sec. 251.103. At the request of 
the Deciding Officer, the Reviewing Officer may extend the time period 
to allow

[[Page 322]]

for meaningful negotiations, except for appeals under review at the 
discretionary level. In the event of mediation of a grazing dispute 
under Sec. 251.103, the Reviewing Officer may extend the time for 
mediation only as provided in Sec. 251.103.
    (c) The Deciding Officer has the authority to withdraw a decision, 
in whole or in part, during the appeal. Where a Deciding Officer decides 
to withdraw a decision, all parties to the appeal and the Reviewing 
Officer must receive written notice.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989; 64 
FR 37846, July 14, 1999]

Sec. 251.94  Responsive statement.

    (a) Content. A responsive statement contains the Deciding Officer's 
response to the specific facts or issues of law or regulation and the 
requested relief set forth by the appellant in the notice of appeal.
    (b) Timeframe. Unless the Reviewing Officer has granted an extension 
or dismissed the appeal, or unless mediation has been requested under 
this subpart, the Deciding Officer shall prepare a responsive statement 
and send it to the Reviewing Officer and all parties to the appeal 
within 30 days of receipt of the notice of appeal. Where mediation 
occurs but fails to resolve the issues, the Deciding Officer shall 
prepare a responsive statement and send it to the Reviewing Officer and 
all parties to the appeal within 30 days of the reinstatement of the 
appeal timeframes (Sec. 251.103(c)).
    (c) Replies. Within 20 days of the postmarked date of the responsive 
statement, the appellant(s) and any intervenor(s) may file a written 
reply to the responsive statement with the Reviewing Officer. Appellants 
and intervenors must send a copy of any reply to a responsive statement 
to all parties to the appeal, including the Deciding Officer.

[54 FR 3362, Jan. 23, 1989, as amended at 64 FR 37846, July 14, 1999]

Sec. 251.95  Authority of reviewing officer.

    (a) Discretion to establish procedures. A Reviewing Officer may 
issue such procedural orders as deemed appropriate to ensure orderly, 
expeditious, and fair conduct of an appeal providing they are consistent 
with other provisions of this part.
    (1) In appeals involving intervenors, the Reviewing Officer may 
prescribe special procedures to conduct the appeal.
    (2) All parties to an appeal shall receive notice of any orders or 
decisions on the conduct of the appeal.
    (3) Orders and determinations governing the conduct of an appeal are 
not subject to appeal and further review.
    (b) Consolidation of appeals. A Reviewing Officer may consolidate 
multiple appeals of the same decision, or of similar decisions involving 
common issues of fact or law and issue one appeal decision. Similarly, a 
Reviewing Officer may issue one decision in cases involving separate 
reviews filed pursuant to 36 CFR part 217 and under this part when the 
decision at issue is the same decision. In such case, the Reviewing 
Officer shall give notice to all parties to multiple appeals.
    (1) A decision to consolidate appeals is not subject to appeal and 
further review.
    (2) At the discretion of the Reviewing Officer, the Deciding Officer 
may prepare one responsive statement to multiple appeals.
    (c) Requests for additional information. Except in discretionary 
review conducted pursuant to Sec. 251.100 and second level appeals of 
decisions made by the District Ranger pursuant to Sec. 251.87(c) of this 
subpart, the Reviewing Officer may ask any party to an appeal for 
additional information as deemed necessary to decide the appeal. Such 
requests will be limited to obtaining and evaluating information needed 
to clarify issues raised. The Reviewing Officer shall notify all parties 
of the request for information, provide it to all parties, give 
opportunity to comment, and extend time periods if necessary to allow 
for submission of the information.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989; 55 
FR 7896, Mar. 6, 1990]

Sec. 251.96  Intervention.

    (a) A request to intervene in an appeal may be made at any time 
prior to the closing of the appeal record

[[Page 323]]

(Sec. 251.98) at the first level of appeal (Sec. 251.87). Requests to 
intervene in an appeal at the discretionary review level 
(Sec. 251.87(d)) shall be denied.
    (b) To request intervention in a first-level appeal under this 
subpart, a party, at a minimum, must:
    (1) Submit a written petition to intervene to the Reviewing Officer,
    (2) Be, as defined at Sec. 251.81 of this subpart, an applicant for 
or holder of a written instrument issued by the Forest Service that is 
the subject of or affected by the appeal, and have an interest that 
could be directly affected by a decision on the appeal, and
    (3) Show, in the request for intervention, how the decision on the 
appeal would directly affect petitioner's interests.
    (c) The Reviewing Officer determines whether a party requesting 
intervention meets the requirements of paragraph (a) of this section. In 
granting intervention, the Reviewing Officer must give notice to all 
other parties to the appeal.
    (d) A granting or denial of intervention is not subject to appeal to 
a higher level.
    (e) Appellants and intervenors must concurrently furnish copies of 
all submissions to each other as well as the Deciding Officer. Failure 
to provide each other copies may result in removal of a submission from 
the appeal record. At the discretion of the Reviewing Officer, 
appellants may be given additional time to review and comment on initial 
submissions by intervenors.
    (f) An intervenor cannot continue an appeal if the appellant 
withdraws the appeal.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]

Sec. 251.97  Oral presentation.

    (a) Purpose. An oral presentation provides an additional opportunity 
for an appellant, and other parties to an appeal, to present their 
viewpoints to the Reviewing Officer. The purpose is to restate, 
emphasize, and/or clarify information related to an appeal. Oral 
presentations are to be conducted in an informal manner and shall not be 
subject to formal rules of procedure such as those applicable to 
judicial proceedings.
    (b) Requests. Only an appellant may request and be granted an oral 
presentation. An appellant may request an oral presentation at any time 
prior to closing of the appeal record (Sec. 251.98). A Reviewing Officer 
shall automatically grant an oral presentation if the appellant 
requested the presentation as part of the notice of appeal.
    (c) Participation. At the discretion of the Reviewing Officer, oral 
presentations may be open to public attendance, but participation is 
limited to parties to the appeal. The Reviewing Officer shall advise all 
parties to the appeal, including the Deciding Officer, of the place, 
time, and date of the oral presentation, and how the oral presentation 
will be conducted. All parties to an appeal shall be invited to 
participate. Appellants and intervenors must bear any expense involved 
in making an oral presentation in person or by telephone.
    (d) Limitation. Oral presentations shall be held only at the first 
level of appeal (Sec. 251.87(b)).

Sec. 251.98  Appeal record.

    The following rules apply only to the appeal record for appeals at 
the first level (Sec. 251.87 (a), (b)):
    (a) It is the responsibility of the Reviewing Officer to maintain in 
one location the documents related to the appeal.
    (b) The record consists of the documents filed with the Reviewing 
Officer including, but not limited to, the notice of appeal, responsive 
statement, replies to submissions by various parties to the appeal, 
orders and determinations made on the conduct of the appeal, and 
correspondence.
    (c) The Reviewing Officer has discretion to remove from the record 
documents that were not sent to all parties to an appeal.
    (d) Unless the Reviewing Officer has ordered otherwise, the appeal 
record closes with the expiration of the time period for filing of the 
reply(ies) to the responsive statement, or at the conclusion of an oral 
presentation, if there is one. The Reviewing Officer shall notify all 
parties to an appeal of the closure of the record.
    (e) The appeal record is open to public inspection.

[[Page 324]]

    (f) In appeals involving initial decisions of the Chief 
(Sec. 251.87(a)), the establishment of an administrative record as 
defined in paragrapn (a) of this section shall not begin unless the 
Secretary elects to review the appeal. Except for the initial notice of 
appeal, any filings made previous to the Secretary's election to review 
will not be accepted.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]

Sec. 251.99  Appeal decision.

    (a) The Reviewing Officer shall base the appeal decision on the 
appeal record and applicable laws, regulations, orders, policies, and 
procedures.
    (b) The Reviewing Officer shall affirm or reverse the original 
decision whole or in part and include the reason(s) for the decision. 
The Reviewing Officer may also include in the appeal decision 
instructions for further action by the Deciding Officer.
    (c) At the first level of appeal, the Reviewing Officer shall make 
and issue an appeal decision within 30 days of the date the record is 
closed.
    (d) At the second level of appeal provided in Sec. 251.87(c), the 
Reviewing Officer shall make and issue an appeal decision within 30 days 
of the date the record is received from the first level Reviewing 
Officer.
    (e) The Reviewing Officer shall send a copy of all appeal decisions 
to all participants.
    (f) Unless the next higher officer exercises the discretion to 
review an appeal decision as provided in Secs. 251.87(e) and 251.100 of 
this subpart, the appeal decision is the final administrative decision 
of the Department of Agriculture and is not subject to further review 
under this subpart or part 217 of this chapter.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989]

Sec. 251.100  Discretionary review.

    (a) Petitions or requests for discretionary review shall not, in and 
of themselves, give rise to a decision to exercise discretionary review. 
In electing to exercise discretion, a Reviewing Officer should consider, 
but is not limited to, such factors as controversy surrounding the 
decision, the potential for litigation, and whether the appeal decision 
is precedential in nature or establishes new policy.
    (b) As provided for in Secs. 251.87(d) and (e), 251.91(k), and 
251.92, stay decisions rendered by a Forest Supervisor, certain 
dismissal decisions rendered by Forest Service line officers, and first-
level appeal decisions rendered by Regional Foresters and the Chief 
(Sec. 251.99), are subject to discretionary review at the next highest 
administrative level. Within one day following the date of a decision 
subject to such discretionary review, the Reviewing Officer shall 
forward a copy of the decision and the initial decision upon which the 
appeal is predicated to the next higher officer.
    (c) The next higher level officer shall have 15 calendar days from 
date of receipt to decide whether or not to review an appeal decision 
and may call for or use the appeal record in deciding whether or not to 
review the appeal decision. If the record is requested, the 15-day 
period is suspended at that point. The lower level Reviewing Officer 
shall forward it within 5 days of the request. Upon receipt, the higher 
level officer shall have 15 days to decide whether or not to review the 
lower level decision. If that officer takes no action by the expiration 
of the discretionary review period, appellants shall be notified by the 
discretionary level officer that the appeal decision of the Reviewing 
Officer stands as the final administrative review decision of the 
Department of Agriculture.
    (d) When an official exercises the discretion in Sec. 251.87(d) or 
Sec. 251.87(e) of this subpart to review a dismissal or appeal decision, 
the discretionary review shall be made on the existing appeal record and 
the lower level Reviewing Officer's appeal decision. The record shall 
not be reopened to accept additional submissions from any source, 
including the Reviewing Officer whose appeal decision is being reviewed.
    (e) When an official exercises discretion to review an appeal 
decision, a Reviewing Officer may extend a stay, in whole or in part, 
during pendency of the discretionary review.
    (f) The second level Reviewing Officer shall conclude the review 
within 30 days of the date of notice issued to an

[[Page 325]]

appellant that the lower level decision will be reviewed.
    (g) If a discretionary review decision is not issued by the end of 
the 30-day review period, appellants and intervenors shall be deemed to 
have exhausted their administrative remedies for purposes of judicial 
review. In such case, appellants, intervenors, and the lower level 
Reviewing Officer shall be notified by the discretionary level officer.
    (h) The Reviewing Officer shall provide a copy of the decision to 
all appellants, intervenors, the Deciding Officer, and the lower level 
Reviewing Officer.

[54 FR 3362, Jan. 23, 1989, as amended at 54 FR 34510, Aug. 21, 1989; 55 
FR 7896, Mar. 6, 1990]

Sec. 251.101  Policy in event of judicial proceedings.

    It is the position of the Department of Agriculture that any filing 
for Federal judicial review of and relief from a decision appealable 
under this subpart is premature and inappropriate, unless the appellant 
has first sought to resolve the dispute by invoking and exhausting the 
procedures of this subpart. This position may be waived only upon a 
written finding by the Chief.

Sec. 251.102  Applicability and effective date.

    (a) Except where applicants or holders elect the decision review 
procedures of part 217 of this chapter, appealable decisions arising 
from the issuance, approval, and administration of written instruments 
authorizing occupancy and use of National Forest System lands made on or 
after February 22, 1989, shall be subject to the procedures of this 
part.
    (b) Decisions made before February 22, 1989, arising from the 
issuance, approval, and administration of written instruments 
authorizing occupancy and use of National Forest System lands shall be 
subject to appeal under the provisions of 36 CFR 211.18.

[54 FR 6892, Feb. 15, 1989]

Sec. 251.103   Mediation of term grazing permit disputes.

    (a) Decisions subject to mediation. In those States with Department 
of Agriculture certified mediation programs, any holder of a term 
grazing permit may request mediation, if a Deciding Officer issues a 
decision to suspend or cancel a term grazing permit, in whole or in 
part, as authorized by 36 CFR 222.4 (a)(2)(i), (ii), (iv), (v), and 
(a)(3) through (a)(6).
    (b) Parties. Notwithstanding the provisions addressing parties to an 
appeal at Sec. 251.86, only the following may participate in mediation 
of term grazing permit disputes under this section:
    (1) A mediator authorized to mediate under a Department of 
Agriculture State certified mediation program:
    (2) The Deciding Officer who made the decision being mediated, or 
designee;
    (3) The holder whose term grazing permit is the subject of the 
Deciding Officer's decision and who has requested mediation in the 
notice of appeal;
    (4) The holder's creditors, if applicable; and
    (5) Legal counsel, if applicable. The Forest Service will have legal 
counsel participate only if the permittee choose to have legal counsel.
    (c) Timeframe. When an appellant simultaneously requests mediation 
at the time an appeal is filed (Sec. 251.84), the Reviewing Officer 
shall immediately notify, by certified mail, all parties to the appeal 
that, in order to allow for mediation, the appeal is suspended for 45 
calendar days from the date of the Reviewing Officer's notice. If 
agreement has not been reached at the end of 45 calendar days, but it 
appears to the Deciding Officer that a mediated agreement may soon be 
reached, the Reviewing Officer may notify, by certified mail, all 
parties to the appeal that the period for mediation is extended for a 
period of up to 15 calendar days from the end of the 45-day appeal 
suspension period. If a mediated agreement cannot be reached under the 
specified timeframes, the Reviewing Officer shall immediately notify, by 
certified mail, all parties to the appeal that mediation was 
unsuccessful, that the stay granted during mediation is lifted, and that 
the timeframes and procedures applicable to an appeal (Sec. 251.89) are 
reinstated as of the date of such notice.
    (d) Confidentiality. Mediation sessions shall be confidential; 
moreover, dispute

[[Page 326]]

resolution communications, as defined in 5 U.S.C. 571(5), shall be 
confidential. However, the final agreement signed by the Forest Service 
official and the permit holder is subject to public disclosure.
    (e) Records. Notes taken or factual material received during 
mediation sessions are not to be entered as part of the appeal record.
    (f) Cost. The United States Government shall cover only incurred 
expenses of its own employees in mediation sessions.
    (g) Exparte communication. Except to request a time extension or 
communicate the results of mediation pursuant to paragraph (d) of this 
section, the Deciding Officer, or designee, shall not discuss mediation 
and/or appeal matters with the Reviewing Officer.

[64 FR 37846, July 14, 1999