36 CFR part 214

Forest Service, USDA

§ 214.2

superseded as to all such projects administered by the Forest Service, but
not as to such project lands administered by other agencies.

§ 214.2

[27 FR 9217, Sept. 18, 1962]

PART 214—POSTDECISIONAL ADMINISTRATIVE REVIEW PROCESS
FOR OCCUPANCY OR USE OF
NATIONAL
FOREST
SYSTEM
LANDS AND RESOURCES
Sec.
214.1 Purpose and scope.
214.2 Definitions.
214.3 Parties to an appeal.
214.4 Decisions that are appealable.
214.5 Decisions that are not appealable.
214.6 Notice of an appealable decision.
214.7 Levels of review.
214.8 Appeal content.
214.9 Filing of an appeal.
214.10 Dismissal of an appeal.
214.11 Intervention.
214.12 Responsive statement and reply.
214.13 Stays.
214.14 Conduct of an appeal.
214.15 Resolution of issues prior to an appeal decision.
214.16 Oral presentation.
214.17 Appeal record.
214.18 Appeal decision.
214.19 Procedures for discretionary review.
214.20 Exhaustion of administrative remedies.
214.21 Information collection requirements.
214.22 Applicability and effective date.
AUTHORITY: 7 U.S.C. 1011(f); 16 U.S.C. 472,
551.
SOURCE: 78 FR 33717, June 5, 2013, unless
otherwise noted.

§ 214.1

Definitions.

Appeal. A document filed with an Appeal Deciding Officer in which an individual or entity seeks review of a Forest Service decision under this part.
Appeal Deciding Officer. The Forest
Service line officer who is one organizational level above the Responsible
Official or the respective Deputy Forest Supervisor, Deputy Regional Forester, or Associate Deputy Chief with
the delegation of authority relevant to
the provisions of this part.
Appeal decision. The final written decision issued by an Appeal Deciding Officer on an appeal filed under this part
which affirms or reverses a Responsible
Official’s appealable decision in whole
or in part, explains the basis for the decision, and provides additional instructions to the parties as necessary.
Appeal record. Documentation and
other information filed with the Appeal
Deciding Officer within the relevant
time period by parties to the appeal
and upon which review of an appeal is
conducted.
Appellant. An individual or entity
that has filed an appeal under this
part.
Cancellation. The invalidation, in
whole or in part, of a term grazing permit or an instrument for the disposal
of mineral materials.
Discretionary Reviewing Officer. The
U.S.
Department
of
Agriculture
(USDA) or Forest Service official authorized to review an appeal decision
by an Appeal Deciding Officer or a decision by the Chief under this part.
Holder. An individual or entity that
holds a valid written authorization.
Intervenor. An individual or entity
whose request to intervene has been
granted by the Appeal Deciding Officer.
Modification. A Responsible Official’s
written revision of the terms and conditions of a written authorization.
Operator. An individual or entity conducting or proposing to conduct mineral operations.
Oral presentation. An informal meeting conducted by the Appeal Deciding
Officer during which parties to an appeal may present information in support of their position.
Prospectus. An announcement published by the Forest Service soliciting

Purpose and scope.

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

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§ 214.3

36 CFR Ch. II (7–1–13 Edition)
(a) Livestock grazing. (1) Modification
of a term grazing permit issued under
36 CFR part 222, subpart A. Issuance of
annual operating instructions does not
constitute a permit modification and is
not an appealable decision;
(2) Suspension or cancellation, other
than cancellation resulting from the
permittee’s waiver to the United
States, of a term grazing permit issued
under 36 CFR part 222, subpart A;
(3) Denial of reauthorization of livestock grazing under a term grazing permit if the holder files an application
for a new permit before the existing
permit expires; or
(4) Denial of a term grazing permit to
a solicited applicant under 36 CFR part
222, subpart C.
(b) Minerals. (1) Approval or denial of
an initial, modified, or supplemental
plan of operations or operating plan;
requirement of an increase in bond coverage; requirement of measures to
avoid irreparable injury, loss, or damage to surface resources pending modification of a plan of operations or operating plan; or issuance of a notice of
noncompliance pursuant to 36 CFR
part 228, subpart A or D, or part 292,
subpart D, F, or G;
(2) Approval or denial of an operating
plan, issuance of a notice of noncompliance, or extension, suspension, or cancellation, other than cancellation by
mutual agreement, for or of 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 National Forest System
lands within the Hells Canyon National

competitive applications for a written
authorization.
Responsible Official. The Forest Service line officer who has the delegated
authority to make and implement a decision that may be appealed under this
part.
Responsive statement. The document
filed by the Responsible Official with
the Appeal Deciding Officer that addresses the issues raised and relief requested in an appeal.
Revocation. The cessation, in whole or
in part, of a written authorization,
other than a grazing permit or an instrument for the disposal of mineral
materials, by action of Responsible Official before the end of the specified period of occupancy or use.
Solicited applicant. An individual or
entity that has submitted a competitive application in response to a prospectus.
Suspension. A temporary revocation
or cancellation of a written authorization.
Termination. The cessation of a written authorization by operation of law
or by operation of a fixed or agreedupon condition, event, or time as specified in the authorization, which does
not require a decision by a Responsible
Official to take effect.
Written authorization. A term grazing
permit, plan of operations, special use
authorization, mineral material contract or permit, or other type of written instrument issued by the Forest
Service or a lease or permit for
leasable minerals issued by the U.S.
Department of the Interior that authorizes the occupancy or use of National Forest System lands or resources and specifies the terms and
conditions under which the occupancy
or use may occur.
§ 214.3 Parties to an appeal.
Parties to an appeal under this part
are limited to the holder, operator, or
solicited applicants who are directly
affected by an appealable decision, intervenors, and the Responsible Official.
§ 214.4 Decisions that are appealable.
To be appealable under this part, a
decision must be issued by a Responsible Official in writing and must fall
into one of the following categories:

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Forest Service, USDA

§ 214.6

Recreation Area pursuant to 36 CFR
part 292, subpart F;
(7) Suspension of locatable mineral
operations on National Forest System
lands within the Smith River National
Recreation Area or approval of an initial or amended operating plan for exercise of outstanding mineral rights on
National Forest System lands within
the Smith River National Recreation
Area pursuant to 36 CFR part 292, subpart G;
(8) Except as provided in paragraph
(7), determinations of the acceptability
of an initial or amended operating plan
for exercise of outstanding mineral
rights on National Forest System
lands; or
(9) Determinations of the acceptability of an initial or amended operating plan for exercise of reserved mineral rights located on National Forest
System lands.
(c) Special uses. (1) Modification, suspension, or revocation of a special use
authorization, other than acceptance
of an operating plan, including:
(i) A special use authorization issued
under 36 CFR part 251, subpart B or D,
other than modification, suspension or
revocation of a noncommercial group
use permit, suspension or revocation of
an easement issued pursuant to 36 CFR
251.53(e) or 251.53(l), or revocation with
the consent of the holder;
(ii) A special use authorization issued
under 36 CFR part 212, subpart A, for
ingress and egress to private lands that
are intermingled with or adjacent to
National Forest System lands;
(iii) A special use authorization
issued under 36 CFR part 251, subpart
A, that authorizes the exercise of
rights reserved in conveyances to the
United States;
(iv) A permit and occupancy agreement issued under 36 CFR 213.3 for national grasslands and other lands administered under Title III of the
Bankhead-Jones Farm Tenant Act;
(v) A permit issued under 36 CFR
293.13 for access to valid occupancies
entirely within a wilderness in the National Forest System.
(vi) A permit issued under the Archaeological Resources Protection Act
of 1979 and 36 CFR part 296 for excavation or removal of archaeological resources; and

(vii) A special use authorization governing surface use associated with the
exercise of outstanding mineral rights;
(2) Denial of a special use authorization to a solicited applicant based on
the process used to select a successful
applicant;
(3) Implementation of new land use
fees for a special use authorization,
other than:
(i) Revision or replacement of a land
use fee system or schedule that is implemented through public notice and
comment; and
(ii) Annual land use fee adjustments
based on an inflation factor that are
calculated under an established fee system or schedule in accordance with the
terms and conditions of a written authorization;
(4) Assignment of a performance rating that affects reissuance or extension
of a special use authorization; or
(5) Denial of renewal of a special use
authorization if it specifically provides
for renewal and if the holder requests
renewal of the authorization before it
expires.
(d) Other land uses. Denial or revocation of a certification of compliance
issued under 36 CFR part 292, subpart
C, related to the use, subdivision, and
development of privately owned property within the boundaries of the Sawtooth National Recreation Area.
§ 214.5 Decisions that are not appealable.
Holders, operators, and solicited applicants may not appeal under this
part any decisions issued by a Responsible Official that are not expressly set
forth in § 214.4.
§ 214.6 Notice of an appealable decision.
(a) The Responsible Official shall
promptly give written notice of decisions subject to appeal under this part
to the affected holder, operator, or solicited applicants and to any holder of
a similar written authorization who
has made a written request to be notified of a specific decision.
(b) If the decision is appealable, the
notice must specify the contents of an
appeal, the name and mailing address
of the Appeal Deciding Officer, and the
filing deadline. The notice shall also

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§ 214.7

36 CFR Ch. II (7–1–13 Edition)

include a statement indicating the Responsible Official’s willingness to meet
with the affected holder, operator, or
solicited applicants to discuss any
issues related to the decision and,
where applicable, informing term grazing permit holders of the opportunity
to request mediation in accordance
with 36 CFR 222.20 through 222.26.
(c) If the decision is not appealable,
the Responsible Official must include a
statement in the written decision informing the affected holder, operator,
or solicited applicants that further administrative review of the decision is
not available.

(1) The appellant’s name, mailing address, daytime telephone number, and
email address, if any;
(2) A brief description of the decision
being appealed, including the name and
title of the Responsible Official and the
date of the decision;
(3) The title or type and, if applicable, identification number for the written authorization and the date of application for or issuance of the written
authorization, if applicable;
(4) A statement of how the appellant
is adversely affected by the decision
being appealed;
(5) A statement of the relevant facts
underlying the decision being appealed;
(6) A discussion of issues raised by
the decision being appealed, including
identification of any laws, regulations,
or policies that were allegedly violated
in reaching the decision being appealed;
(7) A statement as to whether and
how the appellant has attempted to resolve the issues under appeal with the
Responsible Official and the date and
outcome of those efforts;
(8) A statement of the relief sought;
(9) Any documents and other information upon which the appellant relies; and
(10) The appellant’s signature and the
date.
(b) Specific requirements for the contents of an appeal. In addition to the
general requirements in § 214.8(a), the
following specific requirements must
be included in an appeal, where applicable:
(1) A request for an oral presentation
under § 214.16;
(2) A request for a stay under § 214.13;
and
(3) A request to participate in a state
mediation program regarding certain
term grazing permit disputes under 36
CFR part 222, subpart B.

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

§ 214.9 Filing of an appeal.
(a) Timeframe for filing an appeal. An
appeal must be filed with the Appeal
Deciding Officer within 45 days of the
date of the decision.
(b) Method of filing. Appeal documents may be filed in person or by courier, by mail or private delivery service, by facsimile, or by electronic mail.
Parties to an appeal are responsible for

§ 214.8 Appeal content.
(a) General requirements for the contents of an appeal. All appeals must include:

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Forest Service, USDA

§ 214.11
(2) A brief description of the decision
being appealed, including the name and
title of the Responsible Official and the
date of the decision;
(3) The title or type and, if applicable, identification number for the written authorization and the date of application for or issuance of the written
authorization, if applicable;
(4) A description of the requester’s
interest in the appeal and how disposition of the appeal may impair that interest;
(5) A discussion of the factual and
legal allegations in the appeal with
which the requester agrees or disagrees;
(6) A description of additional facts
and issues that are not raised in the
appeal that the requester believes are
relevant and should be considered;
(7) A description of the relief sought,
particularly as it differs from the relief
sought by the appellant;
(8) Where applicable, a response to
the appellant’s request for a stay of the
decision being appealed;
(9) Where applicable, a response to
the appellant’s request for an oral presentation;
(10) Where applicable, a response to
the appellant’s request for mediation of
a term grazing permit dispute under 36
CFR part 222, subpart B; and
(11) The requester’s signature and the
date.
(c) Response to a request to intervene.
The appellant and Responsible Official
shall have 5 days from receipt of a request to intervene to file a written response with the Appeal Deciding Officer.
(d) Intervention decision. The Appeal
Deciding Officer shall have 5 days after
the date a response to a request to intervene is due to issue a decision granting or denying the request. The Appeal
Deciding Officer’s decision shall be in
writing and shall briefly explain the
basis for granting or denying the request. The Appeal Deciding Officer
shall deny a request to intervene or
shall withdraw a decision granting intervenor status as moot if the corresponding appeal is dismissed under
§ 214.10.

ensuring timely filing of appeal documents.
§ 214.10 Dismissal of an appeal.
(a) The Appeal Deciding Officer shall
dismiss an appeal without review when
one or more of the following applies:
(1) The appeal is not filed within the
required time period.
(2) The person or entity that filed the
appeal is not a holder, an operator, or
a solicited applicant of a written authorization that is the subject of the
appealable decision.
(3) The decision is not appealable
under this part.
(4) The appeal does not meet the content requirements specified in § 214.8(a),
provided that an appeal may not be dismissed for failure to include an appraisal report which has not been completed by the filing deadline.
(5) The appellant withdraws the appeal.
(6) The Responsible Official withdraws the written decision that was appealed.
(7) An informal resolution of the dispute is reached pursuant to § 214.15 or a
mediated agreement of a term grazing
dispute is achieved pursuant to 36 CFR
part 222, subpart B.
(8) The requested relief cannot be
granted under applicable facts, laws,
regulations, or policies.
(b) The Appeal Deciding Officer shall
give written notice of the dismissal of
an appeal and shall set forth the reasons for dismissal.
§ 214.11 Intervention.
(a) Eligibility to intervene. To participate as an intervenor in appeals under
this part, a party must:
(1) Be a holder, an operator, or a solicited applicant who claims an interest relating to the subject matter of
the decision being appealed and is so
situated that disposition of the appeal
may impair that interest; and
(2) File a written request to intervene with the Appeal Deciding Officer
within 15 days after an appeal has been
filed.
(b) Request to intervene. A request to
intervene must include:
(1) The requester’s name, mailing address, daytime telephone number, and
email address, if any;

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§ 214.12

36 CFR Ch. II (7–1–13 Edition)
or denying a stay request within 10
days after a responsive statement or an
intervention request is filed, whichever
is later. The stay decision shall be in
writing and shall briefly explain the
basis for granting or denying the stay
request.
(c) Automatic stays. The following decisions are automatically stayed once
an appeal is filed by a holder, operator,
or solicited applicant:
(1) Decisions to issue a written authorization pursuant to a prospectus;
(2) Decisions to recalculate revenuebased land use fees for a special use authorization pursuant to an audit issued
after June 5, 2013; and
(3) Decisions to cancel or suspend a
term grazing permit subject to mediation under 36 CFR 222.20 and for which
mediation is requested in accordance
with that provision.
(d) Stay duration. Authorized stays
and automatic stays under § 214.13(c)(1)
and (c)(2) shall remain in effect until a
final administrative decision is issued
in the appeal, unless they are modified
or lifted in accordance with § 214.13(e).
Automatic stays under § 214.13(c)(3)
shall remain in effect for the duration
of the mediation period as provided in
36 CFR 222.22.
(e) Modification or lifting of a stay.
The Appeal Deciding Officer or a Discretionary Reviewing Officer may modify or lift an authorized stay based
upon a written request by a party to
the appeal who demonstrates that the
circumstances have changed since the
stay was granted and that it is unduly
burdensome or unfair to maintain the
stay.

§ 214.12 Responsive
statement
and
reply.
(a) Responsive statement. The Responsible Official shall prepare a responsive
statement addressing the factual and
legal allegations in the appeal. The responsive statement and any supporting
documentation shall be filed with the
Appeal Deciding Officer within 20 days
of receipt of the appeal or the unsuccessful conclusion of mediation conducted pursuant to 36 CFR part 222,
subpart B, whichever is later.
(b) Reply. Within 10 days of receipt of
the responsive statement, the appellant and intervenors, if any, may file a
reply with the Appeal Deciding Officer
addressing the contentions in the responsive statement.
§ 214.13 Stays.
(a) Implementation. An appealable decision shall be implemented unless an
authorized stay is granted under
§ 214.13(b) or an automatic stay goes
into effect under § 214.13(c).
(b) Authorized stays. Except where a
stay automatically goes into effect
under § 214.13(c), the Appeal Deciding
Officer may grant a written request to
stay the decision that is the subject of
an appeal under this part.
(1) Stay request. To obtain a stay, an
appellant must include a request for a
stay in the appeal pursuant to
§ 214.8(b)(2) and a statement explaining
the need for a stay. The statement
must include, at a minimum:
(i) A description of the adverse impact on the appellant if a stay is not
granted;
(ii) A description of the adverse impact on National Forest System lands
and resources if a stay is not granted;
or
(iii) An explanation as to how a
meaningful decision on the merits of
the appeal could not be achieved if a
stay is not granted.
(2) Stay response. The Responsible Official may support, oppose, or take no
position in the responsive statement
regarding the appellant’s stay request.
Intervenors may support, oppose, or
take no position in the intervention request regarding the appellant’s stay request.
(3) Stay decision. The Appeal Deciding
Officer shall issue a decision granting

§ 214.14 Conduct of an appeal.
(a) Evidence of timely filing. The Appeal Deciding Officer shall determine
the timeliness of an appeal by the following indicators:
(1) The date of the U.S. Postal Service postmark for an appeal received before the close of the fifth business day
after the appeal filing date;
(2) The electronically generated posted date and time for email and facsimiles;
(3) The shipping date for delivery by
private carrier for an appeal received
before the close of the fifth business
day after the appeal filing date; or

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Forest Service, USDA

§ 214.14
(5) Duration. Ordinarily, extensions
that add more than 60 days to the appeal period should not be granted.
(d) Procedural orders. The Appeal Deciding Officer may issue procedural orders as necessary for the orderly, expeditious, and fair conduct of an appeal
under this part.
(e) Consolidation of appeals. (1) The
Appeal Deciding Officer may consolidate multiple appeals of the same decision or of similar decisions involving
common issues of fact and law and
issue one appeal decision.
(2) The Responsible Official may prepare one responsive statement for consolidated appeals.
(f) Requests for additional information.
The Appeal Deciding Officer may ask
parties to an appeal for additional information to clarify appeal issues. If
necessary, the Appeal Deciding Officer
may extend appeal time periods per
paragraph (c)(3) of this section to allow
for submission of the additional information and to give the other parties an
opportunity to review and comment on
it.
(g) Service of documents. (1) Parties to
an appeal shall send a copy of all documents filed in the appeal to all other
parties, including the appellant’s sending a copy of the appeal to the Responsible Official, at the same time the
original is filed with the Appeal Deciding Officer. All filings in an appeal
must be accompanied by a signed and
dated certificate of service attesting
that all other parties have been served.
Prospective intervenors shall send a
copy of their request to intervene to all
parties to the appeal at the same time
the original is filed with the Appeal
Deciding Officer. Each party and prospective intervenor is responsible for
identifying the parties to the appeal
and may contact the Appeal Deciding
Officer for assistance regarding their
names and addresses. Filings in an appeal shall not be considered by the Appeal Deciding Officer unless they are
accompanied by a certificate of service.
(2) All decisions and orders issued by
the Appeal Deciding Officer and the
Discretionary Reviewing Officer related to the appeal shall be in writing
and shall be sent to all parties to the
appeal.

(4) The official agency date stamp
showing receipt of hand delivery.
(b) Computation of time. (1) A time period in this part begins on the first day
following the event or action triggering the time period.
(2) All time periods shall be computed using calendar days, including
Saturdays, Sundays, and Federal holidays. However, if a time period ends on
a Saturday, Sunday, or Federal holiday, the time period is extended to the
end of the next Federal business day.
(c) Extensions of time—(1) In general.
Parties to an appeal, Appeal Deciding
Officers, and Discretionary Reviewing
Officers shall meet the time periods
specified in this part, unless an extension of time has been granted under
paragraph (c)(3) of this section. Extension requests from parties to an appeal
shall be made in writing, shall explain
the need for the extension, and shall be
transmitted to the Appeal Deciding Officer.
(2) Time periods that may not be extended. The following time periods may
not be extended:
(i) The time period for filing an appeal;
(ii) The time period to decide whether to conduct discretionary review of
an appeal decision or a Chief’s decision;
and
(iii) The time period to issue a discretionary review decision.
(3) Time periods that may be extended.
Except as provided in paragraph (c)(2)
of this section, all time periods in this
part may be extended upon written request by a party to an appeal and a
finding of good cause for the extension
by the Appeal Deciding Officer. Written requests for extensions of time will
be automatically granted by the Appeal Deciding Officer where the parties
to an appeal represent that they are
working in good faith to resolve the
dispute and that additional time would
facilitate negotiation of a mutually
agreeable resolution.
(4) Decision. The Appeal Deciding Officer shall have 10 days to issue a decision granting or denying the extension
request. The decision shall be in writing and shall briefly explain the basis
for granting or denying the request.

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§ 214.15

36 CFR Ch. II (7–1–13 Edition)

(h) Posting of final decisions. Once a
final appeal decision or discretionary
review decision has been issued, its
availability shall be posted on the Web
site of the national forest or national
grassland or region that issued the appealable decision or on the Web site of
the Washington Office for Chief’s decisions.
(i) Expenses. Each party to an appeal
shall bear its own expenses, including
costs associated with preparing the appeal, participating in an oral presentation, obtaining information regarding the appeal, and retaining professional consultants or counsel.

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

§ 214.15 Resolution of issues prior to
an appeal decision.
(a) The Responsible Official may discuss an appeal with a party or parties
to narrow issues, agree on facts, and
explore opportunities to resolve one or
more of the issues in dispute by means
other than issuance of an appeal decision.
(b) The Responsible Official who
issued a decision under appeal may
withdraw the decision, in whole or in
part, during an appeal to resolve one or
more issues in dispute. The Responsible
Official shall notify the parties to the
appeal and the Appeal Deciding Officer
of the withdrawal. If the withdrawal of
the decision eliminates all the issues in
dispute in the appeal, the Appeal Deciding Officer shall dismiss the appeal
under § 214.10.
§ 214.16 Oral presentation.
(a) Purpose. The purpose of an oral
presentation is to provide parties to an
appeal with an opportunity to discuss
their concerns regarding the appealable decision with the Appeal Deciding
Officer.
(b) Procedure. Oral presentations are
not evidentiary proceedings involving
examination and cross-examination of
witnesses and are not subject to formal
rules of procedure.
(c) Scope. Oral presentations shall be
conducted in an informal manner and
shall be limited to clarifying or elaborating upon information that has already been filed with the Appeal Deciding Officer. New information may be
presented only if it could not have been
raised earlier in the appeal and if it

§ 214.17

Appeal record.

(a) Location. The Appeal Deciding Officer shall maintain the appeal record
in one location.
(b) Contents. The appeal record shall
consist of information filed with the
Appeal Deciding Officer, including the
appealable decision, appeal, intervention request, responsive statement,
reply, oral presentation summary or
transcript, procedural orders and other
rulings, and any correspondence or
other documentation related to the appeal as determined by the Appeal Deciding Officer.
(c) Closing of the record. (1) The Appeal Deciding Officer shall close the appeal record on:

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Forest Service, USDA

§ 214.19

(i) The day after the date the reply to
the responsive statement is due if no
oral presentation is conducted;
(ii) The day after the oral presentation is conducted if no transcript of
the oral presentation is being prepared;
or
(iii) The day after the date a transcript of the oral presentation is due if
one is being prepared.
(2) The Appeal Deciding Officer shall
notify all parties to the appeal of closing of the record.
(d) Inspection by the public. The appeal record is open for public inspection in accordance with the Freedom of
Information Act, the Privacy Act, and
7 CFR part 1.

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

§ 214.18 Appeal decision.
(a) Appeal decisions made by the Appeal Deciding Officer shall be issued
within 30 days of the date the appeal
record is closed.
(b) The appeal decision shall be based
solely on the appeal record and oral
presentation, if one is conducted.
(c) The appeal decision shall conform
to all applicable laws, regulations,
policies, and procedures.
(d) The appeal decision may affirm or
reverse the appealable decision, in
whole or in part. The appeal decision
must specify the basis for affirmation
or reversal and may include instructions for further action by the Responsible Official.
(e) Except where a decision to conduct discretionary review has been
made and a discretionary review decision has been issued, the appeal decision shall constitute USDA’s final administrative decision.
§ 214.19 Procedures for discretionary
review.
(a) Initiation. (1) One day after
issuance of an appeal decision, the Appeal Deciding Officer shall send a copy
of the appeal decision, appeal, and appealable decision to the Discretionary
Reviewing Officer to determine whether discretionary review of the appeal
decision should be conducted.
(2) One day after issuance of a Chief’s
decision that is eligible for discretionary review under § 214.7(b)(2), the
Chief shall send the decision to the Discretionary Reviewing Officer to deter-

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§ 214.20

36 CFR Ch. II (7–1–13 Edition)
215.20
215.21
215.22

Chief’s
decision
shall
constitute
USDA’s final administrative decision.
§ 214.20 Exhaustion of administrative
remedies.
Per 7 U.S.C. 6912(e), judicial review of
a decision that is appealable under this
part is premature unless the plaintiff
has exhausted the administrative remedies under this part.

Secretary’s authority.
Judicial proceedings.
Applicability and effective date.

AUTHORITY: 16 U.S.C. 472, 551; sec. 322, Pub.
L. 102–381 (Appeals Reform Act), 106 Stat.
1419 (16 U.S.C. 1612 note).
SOURCE: 68 FR 33595, June 4, 2003, unless
otherwise noted.

§ 215.1

Purpose and scope.

(a) Purpose. The rules of this part
have two purposes. First, this part establishes a process by which the public
receives notice and is provided an opportunity to comment on proposed actions for projects and activities implementing a land and resource management plan prior to a decision by the
Responsible Official. Second, this part
establishes an appeal process and identifies the decisions that may be appealed, who may appeal those decisions, the responsibilities of the participants in an appeal, and the procedures that apply for the prompt disposition of the appeal.
(b) Scope. Notice of proposed actions
and opportunity to comment provide
an opportunity for the public to provide meaningful input prior to the decision on projects and activities implementing land management plans. The
rules of this part complement other opportunities to participate in the Forest
Service’s project and activity planning,
such as those provided by the National
Environmental Policy Act of 1969
(NEPA) and its implementing regulations at 40 CFR parts 1500–1508 and 36
CFR part 220; the National Forest Management Act (NFMA) and its implementing regulations at 36 CFR part 219;
and the regulations at 36 CFR part 216
governing public notice and comment
for certain Forest Service directives.

§ 214.21 Information
collection
requirements.
The rules of this part governing appeal of decisions relating to occupancy
or use of National Forest System lands
and resources specify the information
that an appellant must provide in an
appeal. Therefore, these rules contain
information collection requirements as
defined in 5 CFR part 1320. These information collection requirements are assigned Office of Management and Budget Control Number 0596–0231.
§ 214.22 Applicability
and
effective
date.
This part prescribes the procedure for
administrative review of appealable decisions and Chief’s decisions set forth
in § 214.4 issued on or after June 5, 2013.

PART 215—NOTICE, COMMENT,
AND APPEAL PROCEDURES FOR
NATIONAL
FOREST
SYSTEM
PROJECTS AND ACTIVITIES
Sec.
215.1 Purpose and scope.
215.2 Definitions.
215.3 Proposed actions subject to legal notice and opportunity to comment.
215.4 Actions not subject to legal notice and
opportunity to comment.
215.5 Legal notice of proposed actions.
215.6 Comments on proposed actions.
215.7 Legal notice of decision.
215.8 Appeal Deciding Officer.
215.9 Decision implementation.
215.10 Emergency situations.
215.11 Decisions subject to appeal.
215.12 Decisions and actions not subject to
appeal.
215.13 Who may appeal.
215.14 Appeal content.
215.15 Appeal time periods and process.
215.16 Dismissal of appeal without review.
215.17 Informal disposition.
215.18 Formal review and disposition procedures.
215.19 Appeal Reviewing Officer.

[68 FR 33595, June 4, 2003, as amended at 78
FR 33723, June 5, 2013]

§ 215.2

Definitions.

Address—An individual’s or organization’s current physical mailing address. An e-mail address is insufficient
for identification.
Appeal—A document filed with an
Appeal Deciding Officer in which an individual or entity seeks review of a
Forest Service decision under this part.

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