[Federal Register Volume 78, Number 108 (Wednesday, June 5, 2013)]
[Rules and Regulations]
[Pages 33705-33726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-13260]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 212, 214, 215, 222, 228, 241, 251, 254, and 292
RIN 0596-AB45
Postdecisional Administrative Review Process for Occupancy or Use
of National Forest System Lands and Resources
AGENCY: USDA, Forest Service.
ACTION: Final rule.
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SUMMARY: The United States Department of Agriculture (Department) is
issuing this final rule 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. This final 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 (Agency)
decisions affecting their occupancy or use of NFS lands and resources.
The final rule also moves 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
final rule are being made.
DATES: This rule is effective June 5, 2013.
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:
Background and Need for the Final Rule
On January 23, 1989, the Department adopted an administrative
appeal rule at 36 CFR part 251, subpart C (54 FR 3362) (251 Appeal
Rule). The 251 Appeal Rule sets 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 251 Appeal Rule establishes 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 more
than 20 years, the Forest Service identified several modifications to
simplify the appeal process, shorten the appeal time period, and
achieve cost savings. This final rule relocates the 251 Appeal Rule to
a new part 214 entitled, ``Postdecisional Administrative Review Process
for Occupancy or Use of National Forest System Lands and Resources,''
and reserves 36 CFR part 251, subpart C. In addition, the final rule
makes minor, nonsubstantive changes to 36 CFR part 251, subpart B, for
clarity and to distinguish terms in that subpart from part 214. This
final rule also moves the provision governing mediation of term grazing
permit disputes to a new subpart B 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.
Public Involvement and Changes Made in Response to Public Comments
Proposed part 214 was published in the Federal Register on October
11, 2011 (76 FR 62694). The 60-day public comment period ended December
12, 2011. The Forest Service received comments from 43 respondents. The
Agency analyzed the comments and considered them in developing the
final rule.
Following is a summary of the comments and the Agency's response.
The responses to the public comments are divided between general
comments and those that involve specific sections of the proposed rule.
General Comments
Comment: One respondent expressed concern about the lack of public
notice provided by the Forest Service regarding the change in the 251
Appeal Rule and noted that publication in the Federal Register is the
bare minimum requirement to be met in public notification procedures
and that the Agency should have sent letters to all interested parties
and circulated notice broadly.
Response: The Administrative Procedure Act (5 U.S.C. 553(b))
specifies publication in the Federal Register as the required means of
providing public notice of proposed rules. The exception is for rules
that name particular persons, who must be personally served or provided
actual notice of the proposed rule. This exception does not apply to
proposed part 214, which does not name any particular persons. In
addition to publishing the proposed rule in the Federal Register, the
Agency sent a letter to 25 national organizations representing holders
of all types of written authorizations covered by the
[[Page 33706]]
proposed rule. The letter asked the organizations to share information
regarding publication of the proposed rule with their constituencies.
Comment: One respondent suggested the Forest Service change the 251
Appeal Rule to mirror the appeal procedures of the Department's
National Appeals Division or the U.S. Department of the Interior (DOI),
Office of Hearings and Appeals. A second respondent supported these
alternatives and added the Interior Board of Land Appeals procedures as
another example of a preferred approach. Another respondent suggested
that the Forest Service eliminate the 251 Appeal Rule and replace it
with review procedures similar to those used by other agencies in the
Department.
Response: The Forest Service's intent is and always has been to
have an informal administrative appeals process for occupancy or use of
NFS lands and resources. The Agency's belief that a formal
administrative appeals process is not appropriate in this context has
remained unchanged since the process was established in 1988. At that
time, the Agency stated that establishing an independent board to rule
on administrative appeals might appear to be attractive from the
standpoint of obtaining more objective decisions. However, these boards
require highly structured, formalized rules of procedure which
complicate, rather than simplify, the appeals process. Complex
administrative procedures are not in the best interest of appellants
who lack the resources to hire legal representation.
Comment: One respondent noted that the proposed rule simplifies the
appeal process, shortens the appeal period, and reduces the cost of
appeal only for the Forest Service, not appellants. Another respondent
commented that under the proposed rule, appellants would bear most of
the burden resulting from shorter timeframes, and that the proposed
process would be more complicated and expensive. Another respondent
noted that to justify the need for streamlined procedures, the Agency
should review the appeals database, ascertain the number of
administrative appeals filed under the 251 Appeal Rule, and reconsider
whether and to what extent streamlined procedures are necessary. This
respondent stated that the Agency should explain why the 251 Appeal
Rule presents a significant administrative burden and should balance
that burden against the interests of special use permit holders. One
respondent commended the proposed rule, noting that in many instances
it would provide cost savings, more clearly establish timelines, and
clarify agency discretion.
Response: The administrative review process in part 214 is not more
complicated and expensive than the administrative review process in the
251 Appeal Rule. One of the most common complaints regarding the 251
Appeal Rule is that it is confusing and that it takes too long to
process an appeal. The Department believes part 214 improves
significantly upon the 251 Appeal Rule by providing greater clarity and
reducing timeframes.
Comment: One respondent organization noted that it attempts to work
collaboratively where possible to resolve issues arising out of Federal
land management decisions without filing an administrative appeal, but
that at times an administrative appeal is the only option remaining to
address decisions that adversely affect the respondent's members.
Response: This comment is beyond the scope of this rulemaking to
the extent the comment addresses appeal of decisions by organizations
on behalf of their members. Organizations do not have standing to
appeal on behalf of their members under part 214.
The Forest Service first promulgated administrative appeal
procedures in 1936 in recognition of the need to provide an
administrative process for disputing Agency decisions. Part 214
encourages informal dispute resolution. Section 214.6(b) in the final
rule requires the Responsible Official to notify the affected holder,
operator, or solicited applicant of the opportunity to meet to discuss
an appealable decision and, where applicable, inform term grazing
permit holders of the opportunity to request mediation.
Comment: One respondent commented that annual grazing allotment
meetings between the Forest Service and grazing permittees should be
open to the public and that the proposed rule should be revised to
reflect this move towards greater transparency and support for public
involvement in agency decision-making.
Another respondent noted that American citizens have a vested
interest in management decisions affecting Federal lands, expressed
concern about livestock grazing decisions, and stated that the Forest
Service delayed adopting a grazing mediation regulation until 7 years
after enactment of the governing law. Another respondent noted that the
Agricultural Credit Act (ACA) grants a right to mediation to all
livestock producers and others adversely affected by a Forest Service
grazing decision and that the ACA does not limit mediation to decisions
involving cancellation of a grazing permit.
Response: These comments are beyond the scope of this rulemaking,
as they address administration of grazing permits and mediation of
grazing permit decisions, rather than administrative appeal of
decisions pertaining to grazing permits. The proposed part 214 rule did
not make changes to the provisions governing mediation of term grazing
permit disputes. Rather, proposed part 214 moved the mediation
provisions from the 251 Appeal Rule to part 222, governing livestock
grazing, since the mediation provisions relate only to mediation of
term grazing permit disputes, not to appeals of written authorizations.
The issue of whether decisions other than cancellation of term
grazing permits should be subject to mediation was raised in comments
on the proposed mediation regulations. The Federal Register notice for
the final mediation regulations contains a thorough explanation of why
certain grazing permit decisions were made subject to mediation and why
others were not (64 FR 37843-37844 (July 14, 1999)).
Comment: Several respondents suggested abandoning a two-track
appeals process, one for decisions implementing a land management plan
and one for decisions affecting a written authorization. One of these
respondents recommended consistency with the Bureau of Land
Management's (BLM) administrative appeal process. Another respondent
noted that all Americans have equal stakes in the management of Federal
lands. Another respondent noted that the proposed changes to the 251
Appeal Rule develop a more streamlined private administrative appeal
process, with the public unable to participate in any way other than to
learn about the process and results through potential access to the
appeal record via the Freedom of Information Act. Another respondent
stated that the dual-track process was wasteful and unneccessary and
the Forest Service should treat all parties that are interested in
participating alike. Another respondent noted that under the 251 Appeal
Rule, permit holders affected by a decision have an appeal process that
is closed to participation by other interested parties. One respondent
stated that the proposed part 214 appeal process should remain open and
deliberate and should be used to address disputes that arise in the
day-to-day management of NFS lands.
Two respondents commented that the Appeals Reform Act requires the
Forest Service to provide for administrative
[[Page 33707]]
appeal of all decisions implementing a land management plan and that
the proposed 214 rule will preclude appeal of many of these decisions.
One of these respondents also contended that proposed part 214 is
inconsistent with the ACA.
One respondent stated that proposed part 214 does not provide for
independent review and noted that there is an implicit, if not
explicit, conflict in the Agency acting as the arbiter of its own
decisions. Another respondent stated that the 251 Appeal Rule has long
perpetuated an unfair appeal process in which the Forest Service
employees who helped develop a decision also review it. One respondent
stated that many of the revisions in the proposed rule favor the Forest
Service and do not provide a ``fair and deliberate process'' for
appellants.
Response: Prior to adoption of the 251 Appeal Rule, the Agency had
one appeals process for both decisions implementing a land management
plan and decisions pertaining to written authorizations. In 1989, the
Agency established separate appeal procedures for these two types of
decisions, primarily because of the disparity in terms of their scope
and the procedures that are appropriate for administrative review.
Given these differences, it is more efficient and effective to have
separate appeals procedures for these two types of decisions.
Forest Service decisions implementing a land management plan affect
the public in general. Therefore, it is appropriate for the
administrative appeal process for these decisions to be open to the
public and for the appeal procedures to provide for public
participation. Accordingly, notice of an appealable decision
implementing a land management plan is given in a newspaper of record.
In contrast, once a decision has been made to authorize a
particular land use, subsequent Forest Service decisions involving the
associated written authorization uniquely affect the holder, operator,
or solicited applicants. Consequently, it is appropriate for the
administrative appeal process for these decisions to be available only
to the holder, operator, or solicited applicants and for the appeal
procedures to provide for that level of participation. Notice of an
appealable decision involving a written authorization is therefore
given to the affected holder, operator, or solicited applicants.
Part 214 does not preclude appeal of decisions implementing land
management plans. Rather, part 214 does not provide for appeal of these
decisions because appeal of these decisions is provided for under
another part.
Part 214 is not inconsistent with the ACA with respect to mediation
of term grazing permit disputes. Part 214 does not make any substantive
changes to the mediation provisions in the 251 Appeal Rule. Part 214
merely moves these provisions to 36 CFR part 222, which governs
livestock grazing.
The Department believes that part 214 provides a fair
administrative appeals process for appellants. Part 214 remains an
informal process. There is no trial under these procedures. For this
kind of informal administrative process, the decisionmaker is not a
judge, but rather a higher-level agency line officer. Like the 251
Appeal Rule, part 214 provides for review of appealable decisions by an
Agency official who is one level above the decision-maker. This
procedure prevents bias and conflicts of interest.
The Department believes that the streamlining in part 214 will
benefit both the Forest Service and appellants, as the efficiencies
will expedite the appeals process and make it less costly, both in
terms of resources expended and the time it takes for both the Agency
and appellants to know the outcome.
Comments Related to Specific Sections of the Proposed Rule
214.2--Definitions
Comment: Several respondents stated that Responsible Officials,
Appeal Deciding Officers, and Discretionary Reviewing Officers should
be line officers according to the corresponding definitions for
``Deciding Officer'' and ``Reviewing Officer'' in 36 CFR 251.81.
Response: The Department agrees and in the final rule has replaced
the word ``employee'' with the phrase ``line officer'' in the
definitions for ``Responsible Official'' and ``Appeal Deciding
Officer.'' The Department has made corresponding changes to the
definitions for ``Appeal Deciding Officer'' in 36 CFR 215.2. In the
definition for ``Discretionary Reviewing Officer'' in the final rule,
with respect to USDA, the Department has replaced the term ``employee''
with the term ``official,'' and with respect to the Forest Service, the
Department has replaced the term ``employee'' with the term ``line
officer.''
Comment: One respondent stated that the definition for
``revocation'' in the proposed rule applies to a written authorization,
other than a term grazing permit or an instrument for the disposal of
mineral materials; that ``suspension'' is defined as a temporary
revocation of a written authorization, including term grazing permits,
and therefore the two definitions appear to be in conflict.
Response: The definitions for ``revocation'' and ``suspension'' in
part 214 are not contradictory. ``Revocation'' is defined as ``the
cessation, in whole or in part, of a written authorization, other than
a grazing permit or an instrument for the disposal of mineral
materials, by a Responsible Official before the end of the specified
period of occupancy or use.'' ``Cancellation'' is defined as ``the
invalidation, in whole or in part, of a term grazing permit or an
instrument for the disposal of mineral materials.'' The terms
``revocation'' and ``cancellation'' are defined separately because in
existing regulations the term ``revocation'' applies to written
authorizations other than a grazing permit or an instrument for the
disposal of mineral materials, whereas the term ``cancellation''
applies to term grazing permits and instruments for the disposal of
mineral materials. ``Suspension'' is defined as ``a temporary
revocation or cancellation of a written authorization.'' Thus, the term
``suspension'' applies to written authorizations other than a grazing
permit or an instrument for the disposal of mineral materials, which
are subject to revocation, and term grazing permits and instruments for
the disposal of mineral materials, which are subject to cancellation.
214.3--Parties to an Appeal
Comment: Several respondents commented that this provision is
discriminatory because it excludes those who are not holders,
operators, or solicited applicants from the administrative appeal
process. In particular, one respondent noted that this limitation
allows those who are not holders, operators, or solicited applicants to
ignore the administrative appeal process and file suit directly in
Federal district court. Another respondent indicated that there was no
basis for treating holders, operators, and solicited applicants
differently from other parties. Another respondent wanted the Agency to
ensure that the administrative appeal process was open to other members
of the public who have different, but still significant interests, and
who should have standing to appeal decisions that would harm these
interests. This respondent noted that these parties might have recourse
under 36 CFR part 215, but that the regulations were not clear in this
regard. Another respondent stated that limiting appeal under part 214
to the private entity that holds a grazing permit and the Forest
Service official who makes decisions regarding that permit is legally
and socially indefensible.
[[Page 33708]]
One respondent noted that this proposed section is especially
commendable and noted that on several occasions, interest groups were
allowed to appeal under the 251 Appeal Rule based on the unclear
language of Sec. 251.86.
One respondent asked whether a decision may be appealed only by the
holder whose permit is the subject of that decision, or whether another
permit holder could appeal the decision if it impairs that holder's
interests, even if the holder whose permit is the subject of the
decision does not appeal.
Response: Like Sec. 251.86 in the 251 Appeal Rule, Sec. 214.3 in
part 214 limits parties to an appeal to holders, operators, solicited
applicants, intervenors, and the Responsible Official. These comments
are therefore beyond the scope of this rulemaking.
In 1989, the Agency established separate appeal procedures for
decisions implementing a land management plan and decisions pertaining
to written authorizations, primarily because of the disparity in terms
of their scope and the procedures that are appropriate for
administrative review. Given these differences, it is more efficient
and effective to have separate appeals procedures for these two types
of decisions.
Forest Service decisions implementing a land management plan affect
the public generally. Therefore, it is appropriate for the
administrative appeal process for these decisions to be open to the
public and for the appeal procedures to provide for public
participation.
In contrast, Forest Service decisions involving a written
authorization concern the holder's, operator's, or solicited
applicants' use, rather than the land management decision to authorize
the use. Consequently, it is appropriate for the administrative appeal
process for these decisions to be available only to the holder,
operator, or solicited applicants and for the appeal procedures to
provide for that level of participation.
Part 214 does not preclude appeal of decisions implementing land
management plans. Rather, part 214 does not provide for appeal of these
decisions because appeal of these decisions is provided under another
part.
A permit holder who claims an interest relating to a decision
regarding another holder's permit may not appeal that decision under
part 214, even if the other holder does not appeal. However, the permit
holder who claims an interest relating to the decision may request to
intervene per Sec. 214.11 in the final rule in an appeal filed by the
other permit holder. To clarify this intent, the Department has revised
Sec. 214.3, Parties to an Appeal, in the final rule to read: ``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
Comment: Several respondents objected to the list of decisions that
are appealable. In particular, one respondent noted that the narrow and
self-serving restriction on the type of decisions that are appealable
is not in the best interests of the American people who use and enjoy
NFS lands. Another respondent stated that the limited list makes it
appear as if the Forest Service wants to avoid dealing with disputes
involving day-to-day management of grazing on NFS lands. One respondent
stated that the approach taken on appealable decisions in the proposed
rule would ensure more, not less, litigation. One respondent stated
that the very restrictive list of decisions that are appealable under
the proposed rule would make the appeal process under part 214 almost
meaningless. Another respondent noted that the simplest approach would
be to provide that all Forest Service decisions are appealable unless
Federal law precludes it. Three respondents commented that the proposed
rule should state which decisions are not appealable and allow appeal
of all other decisions. One respondent commented that the Forest
Service needs to return to the approach in the 251 Appeal Rule, which
enumerates 15 types of decisions that are not appealable and allows
appeal of the remainder, or expand the list of decisions that are
appealable in the proposed rule.
One respondent commented that like the 251 Appeal Rule, part 214
should allow appeal of permit administration decisions generally,
including decisions about ski area master development plans and project
proposals.
Several respondents commented that part 214 should include
acceptance of an operating plan as an appealable decision so that
holders of a special use authorization can challenge any operating plan
requirements that may be unreasonable or impracticable. One of these
respondents noted in proposed Sec. 214.4(c)(1) that the use of the
word ``acceptance'' in the phrase, ``modification, suspension, or
revocation of a special use authorization, other than acceptance of an
operating plan,'' was unclear and if the word ``acceptance'' was
removed from this phrase, an operating plan could never be appealed.
Response: Based on technological advances, communications
improvements, and the Agency's experience administering the 251 Appeal
Rule for more than 20 years, the Forest Service identified several
modifications that would simplify the appeal process and achieve cost
savings, including clarifying the types of decisions that are
appealable. When Sec. 214.4 is read together with Sec. 214.5, part
214 provides 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 by the type of written authorization.
Paragraph (a) lists four types of appealable decisions involving the
administration of livestock grazing; paragraph (b) lists nine types of
appealable decisions involving the administration of mineral
exploration and development activities; paragraph (c) lists five types
of appealable decisions involving the administration of special uses;
and paragraph (d) lists one additional type of appealable decisions
associated with other land uses. The contents of these lists reflect
the types of decisions that are typically appealed by existing holders,
operators, and solicited applicants and the Agency's intent regarding
the types of decisions for which an appeal right should be granted.
Acceptance of a ski area master development plan should not be
appealable because it does not constitute approval to construct new
facilities. Rather, proposals for specific projects, including those
implementing a ski area master development plan, are analyzed pursuant
to applicable environmental law and, if appropriate, approved by the
Forest Service. A decision regarding a proposed project would be
subject to administrative review under another part rather than under
part 214.
Acceptance of an operating plan is not included in the list of
appealable decisions because an operating plan is not a decision
document and does not permanently modify a special use authorization.
Rather, an operating plan merely implements a prior management decision
that is subject to administrative review under another part and
provides direction for the upcoming operating
[[Page 33709]]
season. To the extent feasible, operating plans should be developed in
consultation with the Responsible Official. The phrase, ``other than
acceptance of an operating plan,'' follows the phrase, ``modification,
suspension, or revocation of a special use authorization'' in Sec.
214.4(c)(1) because the Agency wants to make clear that acceptance of
an operating plan, which is not appealable, does not constitute
modification of a special use authorization, which is appealable.
Comment: One respondent stated that it is unclear whether land use
fee determinations based on the Cabin User Fee Fairness Act (CUFFA) or
S. 1906, introduced on November 18, 2011, in the 112th Congress, 1st
session, would be appealable under part 214. Another respondent
commented that CUFFA-based land use fee determinations and land use fee
determinations under any future fee system for recreation residence
permits should be appealable under part 214.
Response: It is not appropriate for the Department to address
appealability of land use fee determinations under S. 1906 because that
bill has not become law.
Land use fee determinations based on CUFFA are appealable under
Sec. 214.4(c)(3) of the final rule, which includes in the list of
appealable decisions:
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; . . .
Land use fee determinations based on CUFFA involve case-specific
appraisals and, as a result, do not constitute revision or replacement
of a land use fee system or schedule or annual land use fee adjustments
based on an inflation factor. The appealability of land use fee
determinations under future fee systems for recreation residence
permits would depend on whether the land use fee determinations meet
either of the exceptions in Sec. 214.4(c)(3).
Comment: One respondent noted that the Forest Service uses annual
operating instructions (AOIs) as a second permitting system to
supplement or replace the allotment management plan (AMP) in adjusting
livestock grazing rates, numbers of livestock, and seasons of use, and
that AOIs therefore constitute an appealable permit modification. This
respondent also commented that the Forest Service has acquiesced with
this position by treating noncompliance with AOIs as a permit
violation. Another respondent commented that issuance of AOIs is a
permit modification, that any reference to AOIs in the proposed rule
should be removed, and that the proposed rule should not preclude
appeal of a decision just because it is contained in a document that is
specifically named in the regulation. Another respondent commented that
AOIs modify the grazing permit and denial of a right to appeal AOIs
leaves permittees vulnerable to abusive and punitive measures without
any avenue of relief and establishes a dictatorial process for
management of livestock grazing on NFS lands.
A respondent commented that the proposed rule should allow appeal
of denial, modification, and maintenance of range improvements and
determinations of unauthorized grazing use.
One respondent recommended moving the provisions pertaining to AOIs
to Sec. 214.5. Another respondent stated that the Forest Service
should make absolutely clear that AOIs are not appealable decisions by
moving all references to AOIs from Sec. 214.4, which specifies the
decisions that are appealable, to Sec. 214.5, which enumerates the
decisions that are not appealable.
Response: Annual operating instructions (AOIs) are not an
appealable decision because they are not decision documents and do not
permanently modify a grazing permit. Rather, AOIs merely implement
prior management decisions that are subject to administrative review
under another regulation and provide instructions for the upcoming
grazing season. To the extent feasible, AOIs should be developed in
cooperation with the permittee.
Activities identified in AOIs must be within the scope of the AMP
and the grazing permit. The annual bill for collection identifies the
number, kind, and class of livestock authorized to graze on an
allotment and any adjustments to season of use for that allotment.
Failure to comply with provisions of the AMP or instructions issued by
the Responsible Official, including the AOI, is a violation of the
terms and conditions of a term grazing permit.
New decisions concerning denial, modification, and maintenance of
range improvements are not made in AOIs. Changes in allocation of
maintenance responsibilities for range improvements are modifications
of term grazing permits and are appealable decisions under 36 CFR
214.4(a). Decisions to suspend or cancel part or all of a term grazing
permit for unauthorized use are also appealable under 36 CFR 214.4(a).
The statement, ``Issuance of annual operating instructions does not
constitute a permit modification and is not an appealable decision;''
is placed in Sec. 214.4(a)(1), which provides for appeal of
modification of a term grazing permit, rather than Sec. 214.5, which
enumerates the decisions that are not appealable, to clarify that
issuance of AOIs does not constitute a permit modification.
Comment: One respondent commented that reductions in the number of
authorized livestock and the authorized season of use should be added
to cancellation and suspension as an appealable decision in Sec.
214.4(a)(2) relating to term grazing permits.
Response: ``Cancel'' and ``suspend,'' as applied to grazing
permits, are defined in 36 CFR 222.1(b). Both terms encompass
reductions in the number of authorized livestock and the authorized
season of use. ``Cancel'' means action taken to permanently invalidate
a term grazing permit in whole or in part (36 CFR 222.1(b)(4)).
``Suspend'' means temporary withholding of a term grazing permit
privilege, in whole or in part (36 CFR 222.1(b)(22)). Permanent changes
in the number of authorized livestock or the authorized season of use
are permit modifications that are appealable under 36 CFR 214.4(a).
Annual adjustments in response to resource conditions, as provided for
in Part 2, Section 8(c), of the term grazing permit, are not permit
modifications and are not appealable under 36 CFR 214.4(a).
Comment: One respondent noted that if the Forest Service were
really interested in a collaborative relationship with the public and
permit holders, the Agency would embrace mediation and recognize that
all of its decisions should be appealable.
Response: Regulations governing implementation of changes to the
ACA regarding mediation were developed through a public rulemaking
process, like the one being used to develop part 214. No changes were
proposed to the mediation provisions. Rather, the Agency proposed
moving the provisions from the 251 Appeal Rule to the livestock grazing
regulations in 36 CFR part 222, since the mediation provisions do not
relate to other types of written authorizations.
Comment: One respondent stated that the proposed rule violates the
Administrative Procedure Act, 5 U.S.C. 558(c), by denying any right of
appeal by a special use permit holder if the permit terminates before
the Agency has
[[Page 33710]]
acted on a request for renewal. Two respondents commented that
successful solicited applicants should remain eligible to appeal the
terms and conditions in their special use authorization. Another
respondent stated that any type of applicant for a special use
authorization should be able to appeal the terms and conditions of the
authorization and noted that under the proposed rule a landowner
applicant would not be able to appeal denial or the terms and
conditions of a special use authorization granting access to the
landowner's property, despite the landowner's statutory right of
access.
Response: With respect to renewal, an appeal right is available
only when an authorization provides for renewal and the holder requests
renewal before the authorization expires. Whether the Agency has acted
on a request for renewal is irrelevant to a right of appeal.
The Forest Service has broad authority to impose terms and
conditions in special use authorizations that are necessary to protect
NFS lands and other interests (36 CFR 251.56). With respect to access
to private property, Section 1323(a) of the Alaska National Interest
Lands Conservation Act provides owners of non-Federal property within
the boundaries of the NFS certain rights of access across NFS lands.
The Responsible Official may prescribe such terms and conditions as the
official deems adequate to secure to non-Federal property owners the
reasonable use and enjoyment of their property (16 U.S.C. 3210(a); 36
CFR 212.6(b) and 251.110(c)). Terms and conditions in special use
authorizations implement the Forest Service's statutory and regulatory
authority and directives. The Department does not believe it is
appropriate to allow any holders, including holders of an authorization
issued in connection with exercise of a right of access to non-Federal
property, to appeal the terms and conditions in their authorization.
Comment: One respondent stated that decisions and direction
communicated to permit holders should be in writing, either hard copy
or electronically.
Response: Appealable decisions must be in writing, per Sec. 214.4.
Decisions issued by the Appeal Deciding Officer or Discretionary
Reviewing Officer must be in writing, per Sec. Sec. 214.2 and
214.19(d). In addition, Sec. 214.14(g)(2) has been revised to clarify
that decisions and orders issued by the Appeal Deciding Officer must be
in writing.
214.5--Decisions That Are Not Appealable
Comment: One respondent commented that the proposed rule was
confusing because it intermingles a long list of decisions that cannot
be appealed with decisions that can be appealed. Another respondent
noted that this section should state, ``Holders, operators, and
solicited applicants may appeal any decision that is not expressively
[sic] not appealable.''
Response: Section 214.4 states that to be appealable under part
214, a decision must be issued by a Responsible Official in writing and
must fall into one of the enumerated categories in that section. The
list of types of decisions that are appealable in limited cases
includes exceptions to clarify the Agency's intent, such as in Sec.
214.4(a)(1) regarding issuance of AOIs and Sec. 214.4(c)(1) regarding
acceptance of an operating plan. Section 214.5 states that decisions
issued by a Responsible Official that are not expressly set forth in
Sec. 214.4 are not appealable. The Department believes that these two
sections are unambiguous and need no clarification.
214.6--Election of Appeal Process
Comment. One respondent stated that decisions that are appealable
under part 214 should be appealable under part 215.
Response. This provision in the proposed rule would allow the
holder of a written authorization who had standing under both parts 214
and 215 to elect between the two, but not both. On December 23, 2011,
President Obama signed into law the Consolidated Appropriations Act,
2012, Public Law 112-74, for the U.S. Department of the Interior and
related agencies, including the Forest Service. Section 428 of Public
Law 112-74 (Section 428) requires a predecisional objection process for
proposed actions of the Forest Service concerning projects and
activities implementing land management plans and documented with a
record of decision or decision notice, in place of a postdecisional
appeal process in this context. The Forest Service is in the process of
drafting regulations to implement Section 428.
Since Section 428 requires a predecisional administrative review
process, and part 214 provides for a postdecisional administrative
review process, the two review procedures will not run in tandem.
Therefore, there is no longer a need to provide for election between
appeal procedures for proposed actions of the Forest Service concerning
projects and activities implementing land management plans and
documented with a record of decision or decision notice. Accordingly,
the Department has removed the election provision from the final rule.
The Department has made a corresponding change to part 215 by removing
Sec. 215.11(d).
214.7--Notice of an Appealable Decision
Comment: One respondent stated that publication in 2-point type in
one State newspaper, especially when this newspaper is not online, is
not adequate notice of an appealable decision.
Response: This comment is beyond the scope of this rulemaking, as
the comment pertains to notice of an appealable decision provided under
part 215, not part 214. Part 215 provides for notice of an appealable
decision to be published in the applicable newspaper of record (36 CFR
215.5(b)(2) and 215.7(b)), since appealable decisions under part 215
pertain to projects implementing a land management plan and affect the
public generally. Part 214 provides for notice of an appealable
decision to be given to the affected holder, operator, or solicited
applicants in the appealable decision (36 CFR 214.6(a)), as appealable
decisions under part 214 uniquely affect the holder, operator, or
solicited applicants.
Comment: Several respondents commented that parties other than
those who are directly affected by an appealable decision should
receive notice. One respondent stated that the Forest Service should
not limit the Responsible Official's notice obligation to the parties
who are directly affected by the decision and make it ``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.'' Five
respondents stated that holders of similar instruments who have made a
written request to be notified of a specific decision should continue
to receive notice as provided under the 251 Appeal Rule. One of these
respondents noted that individuals and small organizations do not
monitor the Federal Register or stay connected to entities that have
the mechanisms in place to monitor these developments regularly.
Another respondent commented that anyone who requests notification when
the Forest Service makes an appealable decision should receive notice.
One respondent noted that each written appealable decision will
notify affected parties of their right to appeal, but the Forest
Service does not need to
[[Page 33711]]
inform the public of affected parties' right to appeal.
Response: The Department recognizes the need to be open and
transparent in applying the appeals process. The Department agrees with
respondents' concerns that it is reasonable for the Responsible
Official to notify any holder of a similar written authorization who
has made a written request to be notified of a specific decision and
has reinstated this requirement from the 251 Appeal Rule in Sec. 214.6
of the final rule.
Comment: One respondent suggested that instead of just stating the
Responsible Official's willingness to meet with the affected holder,
operator, or solicited applicant to discuss the decision, the proposed
rule should use the wording from Sec. 214.15(a) to express the
willingness of the Responsible Official to ``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 the issuance of an appeal decision.'' Another respondent
commented that Responsible Officials rarely include the right to seek
informal resolution and appeal rights in an appealable decision. This
respondent believed that Responsible Officials do not offer an
opportunity for informal resolution because they do not believe they
are wrong.
Response: Section 214.7 addresses the opportunity to discuss an
appealable decision with the Responsible Official. Notices of an
appealable decision must include a statement indicating the Responsible
Official's willingness to meet with the affected holder, operator, or
solicited applicants to discuss the decision. In contrast, Sec.
214.15(a) addresses the opportunity to discuss informal resolution of
issues in a pending appeal with the Responsible Official. The wording
differs in the two sections in accordance with the context of the
discussions.
214.8--Levels of Review
Comment: One respondent noted the proposed rule does not provide
for independent review, since the Appeal Deciding Officer comes from
the same agency as the Responsible Official. Another respondent
suggested adding a provision that prohibits any ex parte contact--
direct or indirect--between the Appeal Deciding Officer and the
Responsible Official concerning an appeal to enhance objectivity and
transparency in the appeal process and to meet the stated objective of
a ``fair and deliberate process.''
Several respondents urged the Forest Service to retain two levels
of appeal for appealable decisions made by District Rangers, as
provided in the 251 Appeal Rule. One of these respondents noted that
although the proposed change may simplify and expedite the appeal
process, the proposed change also injects a significant and unwarranted
inconsistency into the process. Another respondent commented that the
second level of review is extremely important and should be provided
for all decisions below the regional level. Another respondent
suggested that District Ranger and Forest Supervisor decisions both be
appealable to the Regional Forester. One respondent stated the final
rule should retain opportunities for mandatory review of Forest
Supervisor decisions by regional offices.
Response: Limiting appeal to one level responds to concerns about
the appeal process taking too long. The Department believes the nature
of decisions relating to written authorizations are of such specificity
and detail that two levels of review are excessive. In addition, part
214 provides for discretionary review by the next higher line officer.
The Department believes by limiting appeal to one level and providing
for discretionary review for all appeal decisions, the appeal process
is simplified and expedited. Providing for one level of appeal for all
decisions, rather than two levels for some and one level for others,
enhances consistency in the appeal process. Appealable decisions of
Forest Supervisors are appealed to the Regional Forester per Sec.
214.7. The review of all appeals at the level of the Regional Forester
does not necessarily enhance expertise and efficiency in processing 214
appeals. Therefore, at this time, the Department is not making this
change.
214.9--Appeal Content
Comment: One respondent stated that other than a copy of the
decision being appealed, appellants should not have to include Forest
Service documents, such as an appraisal. This same respondent noted
that appellants should not have to submit documents in their possession
and that referencing them should be sufficient.
Another respondent stated that it was a waste of paper to require
submission of the appealable decision when the Forest Service already
has it.
Response: The Department believes that it is essential for
appellants to include any documents or other information upon which
they rely in their appeal so that the Appeal Deciding Officer can make
a fully informed appeal decision. This provision does not exclude
documents in the Agency's possession, as both appellants and the Agency
cannot be sure that the Agency possesses documents upon which
appellants rely.
The Department agrees that requiring submission of a copy of the
decision being appealed is unnecessary. Section 214.8(a)(2) has been
revised to require ``a brief description of the decision being
appealed, including the name and title of the Responsible Official and
the date of the decision.'' In addition, Sec. 214.8(a)(3) has been
revised to require the identification number for the written
authorization, if applicable.
Comment: Several respondents objected to the 30-day timeframe for
filing an appeal and requested that the 45-day timeframe in the 251
Appeal Rule be reinstated. Several respondents stated that the
timeframe should be at least 45 days. One respondent noted that since
more information must be submitted in an appeal under the proposed rule
than under the 251 Appeal Rule, the timeframe should be lengthened to
perhaps 60 days. One respondent stated that if the 30-day timeframe is
retained, the Agency must allow prospective appellants to request an
extension of the deadline. One respondent stated that since the Forest
Service generally still mails appealable decisions, receipt takes
several days after the date of the decision. This respondent further
stated that while the proposed rule shortens the timeframe for filing
an appeal based on the assumption that electronic media makes it
feasible, the proposed rule does not impose an obligation on the Forest
Service to transmit appealable decisions electronically. This
respondent believed this discrepancy is not only unfair but also
unworkable and is calculated to disqualify or discourage appellants.
Another respondent stated that the shorter appeal period in the
proposed rule is calculated to impede appellants' exercise of appeal
rights. Another respondent expressed appreciation for the goal of
expediting the appeal process, but stated that the proposed timeframe
for filing an appeal would be very problematic for complex appeals,
particularly given the additional information the Agency requires
appellants to submit under the proposed rule. Another respondent
commented that the proposed changes to filing deadlines and
discretionary review does not sufficiently accommodate the procedural
rights of special use permit holders.
Response: One of the common frustrations of appellants and the
Agency in connection with the 251 Appeal Rule for over 20 years is the
amount of time required to issue an
[[Page 33712]]
appeal decision. To address this concern, numerous changes intended to
shorten timeframes were included in the proposed rule. One reduced the
timeframe for filing an appeal from 45 to 30 days. However, the Agency
recognizes the respondents' concerns that shortening the timeframe for
filing an appeal to 30 days may be burdensome, therefore, the 45-day
timeframe is reinstated. Changes to discretionary review do not affect
appeal rights, since discretionary review is not an appeal right, but
rather an additional review that is conducted at the discretion of the
Forest Service.
Comment: One respondent proposed posting a notice of all appeal
periods on the Forest Service's Web site. Another respondent noted that
the Forest Service does not regularly post environmental assessments
and findings of no significant impact on the internet.
Response: The Department believes that the Forest Service's
administrative appeal regulations give sufficient notice of applicable
appeal periods. The comment regarding posting of environmental decision
documents on the internet is beyond the scope of this rulemaking, which
does not govern appeal of these decisions.
Comment: One respondent strongly recommended that the Forest
Service follow the example of the Interior Board of Land Appeals (IBLA)
and the Federal court system and set a reasonable page limit on
appeals.
Response: The Department is considering the merits of a page limit,
including the need to seek further public input on the issue and has
decided not to establish a page limit in part 214. at this time.
214.11--Intervention
Comment: One respondent suggested that interested parties be able
to request notification of all livestock grazing or mining appeals as
soon as they are filed. Another respondent stated that the proposed
rule should provide for notifying all interested parties that an appeal
has been filed and should base the intervention deadline upon the date
of notification, rather than within 15 days after an appeal has been
filed, as provided in Sec. 214.11(a)(2) of the proposed rule. This
respondent noted that Bureau of Land Management's (BLM's) appeals
process provides better notice of appeals, as the process requires
appellants to serve notice of their appeal on all parties named in the
grazing decision, including those identified in the copies circulated
list in the decision document. This respondent further noted that
posting appeals online is insufficient and the Agency should notify
parties of the filing of appeals and appeal decisions.
Several respondents expressed concern about the 15-day timeframe
for intervention in part 214 and they requested the Agency retain the
timeframe in the 251 Appeal Rule. One of these respondents noted that
15 days may not be enough time to review relevant materials and file an
intervention request, particularly if there is a slight delay in the
notification of the appeal.
One respondent noted that limiting the intervention process to 10
days--5 days for the appellant and Responsible Official to file a
response and 5 days for the Appeal Deciding Officer to make a decision
on the intervention request problematic, given that the Forest Service
makes no effort to notify the public in a timely fashion of appeals
that have been filed.
Another respondent proposed that interested parties be able to
intervene by claiming ``an interest relating to the subject matter of
the decision being appealed'' and providing direct or indirect evidence
that their interest could be impaired by the disposition of the appeal.
Another respondent suggested revising the proposed rule to state
that intervenors must have an interest relating to the subject matter
of the decision being appealed, which may be impaired by the
disposition of the appeal.
One respondent requested examples of when intervention would be
appropriate outside of a competitive offering asked if a special use
permit holder could intervene in an appeal where issuance of a new
permit implicates recreational carrying capacity.
Response: Appeals under part 214 are limited to the holder,
operator, or solicited applicants who are directly affected by an
appealable decision, intervenors, and the Responsible Official.
Intervenors are accordingly limited to a holder, an operator, or
solicited applicants who claim an interest relating to the subject
matter of the decision being appealed and are so situated that
disposition of the appeal may impair that interest. Because of the
limits on who can be a party to an appeal and intervention under part
214, the Department believes it is unnecessary to notify the public of
appeals that have been filed, or to allow intervention by all those who
claim an interest relating to the subject matter of the decision being
appealed that could be impaired by disposition of an appeal. Per Sec.
214.14(i), the Agency will notify the public of final appeal decisions
by posting the decisions on the Web site of the national forest,
national grassland, or region that issued the appealable decision, or
for Chief's decisions, on the Web site of the Washington Office.
The 251 Appeal Rule allows an intervention request to be filed at
any time before the closing of the appeal record. It is inefficient for
an intervention request to be filed after the appeal process is
underway. The Department believes the 15-day timeframe for requesting
intervention is sufficient, especially now that the Department has
reinstated the requirement to notify any holder who has made a written
request to be notified of a specific decision. The opportunity to
participate as an intervenor applies to a limited few, and those
potential intervenors are usually familiar with the issues associated
with a decision being appealed. Limiting the time for filing,
responding to, and ruling on an intervention request facilitates the
orderly and expeditious handling of appeals.
A holder 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 may request to intervene. For example,
if the holder of a term grazing permit appeals a decision arising from
administration of the holder's permit, a holder of a term grazing
permit on a neighboring allotment might also be affected by the appeal
decision and could request to intervene in the appeal. Additionally,
the holder of an outfitting and guiding permit may have an interest
that could be affected by administration of another outfitting and
guiding permit. However, a decision regarding issuance of a new special
use permit that implicates recreational carrying capacity generally
would not be appealable under part 214, which generally does not
provide for appeal of issuance of special use permits, and therefore
generally would not afford an opportunity to intervene. A decision
regarding issuance of a new special use permit that implicates
recreational carrying capacity would be appealable only if the decision
involves denial of renewal of a special use permit that specifically
provides for renewal and if the holder requests renewal before the
permit expires, per Sec. 214.4(c)(5). Intervention in such an appeal
might be appropriate if the effect on carrying capacity of the decision
being appealed were such that disposition of the appeal may impair the
interest of a holder of a similar special use permit.
[[Page 33713]]
214.12--Responsive Statement and Reply
Comment: Several respondents objected to the 10-day timeframe for
appellants and intervenors to reply to a responsive statement. One
respondent commented that appellants and intervenors should be given at
least 15 days to file a reply to a responsive statement. Another
respondent requested reinstatement of the 20-day period for filing a
reply to a responsive statement and noted that the appeal process
should not be shortened at the expense of appellants. One respondent
stated that the Forest Service has failed to meet its deadline for a
responsive statement and the notion that appeals should not take more
than 60 days makes a mockery of the stated objective to provide a fair
and deliberative process.
Response: Replying to the responsive statement is optional for
appellants and intervenors. Reducing the timeframe for a reply to 10
days provides enough time for appellants and intervenors to address
contentions in the responsive statement succinctly, without restating
the entire appeal. The Responsible Official's time period for filing a
responsive statement has also been shortened by 10 days, and the Agency
takes appeal timeframes very seriously. The Department is retaining the
timeframes for intervention in the proposed rule to provide for more
orderly and expeditious handling of appeals.
214.13--Stays
Comment: One respondent stated that the final rule should clarify
whether an intervenor can request a stay. Another respondent
recommended removing the provision in the proposed rule allowing a non-
party to an appeal to request that a stay be modified or lifted.
Response: The proposed and final rules are clear that only the
appellant may request a stay of the decision being appealed. Section
214.13(b)(1) of the proposed and final rules limits a request for a
stay to the appellant. Per Sec. 214.13(b)(2), intervenors may support,
oppose, or take no position in their intervention request regarding the
appellant's stay request.
The Department agrees that Sec. 214.13(e) could be interpreted to
allow a non-party to request that a stay be modified or lifted because
this provision states that ``a party,'' rather than ``a party to the
appeal,'' may submit the request. Accordingly, Sec. 214.13(e) in the
final rule has been revised to allow only a party to an appeal to
request that a stay be modified or lifted.
214.14--Conduct of an Appeal
Comment: One respondent did not understand the intent of the
phrase, ``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,'' in paragraph (b)(1) of the proposed rule.
Response: This phrase is also included in paragraph (b)(3) with
respect to timely filing of an appeal that is delivered by private
carrier. Adding 5 business days after the appeal filing date allows
sufficient time for an appeal filed through the U.S. Postal Service or
a private carrier to be received by the Appeal Deciding Officer.
Comment: One respondent stated that appeals should be consolidated
only when the issues in the appeals are identical.
Response: The Department believes it is appropriate to allow
consolidation of multiple appeals of the same decision or of similar
decisions involving common issues of fact and law, even if not all of
the issues in the appeals are identical, as provided in the 251 Appeal
Rule.
Comment: One respondent supported the new provision in the proposed
rule requiring all parties to an appeal to send a copy of all documents
filed in an appeal to all other parties to the appeal at the same time
the original is filed with the Appeal Deciding Officer. This respondent
believed that this provision could be improved by stating that
prospective intervenors--who are not yet parties--also need to send a
copy of all documents filed in an appeal to all parties to the appeal.
Response: The Department agrees and has added a provision to Sec.
214.14 in the final rule stating that prospective intervenors must send
a copy of their request to intervene to all parties to the appeal. The
provision in the proposed and final rules requiring all parties to an
appeal to send a copy of all documents filed in an appeal to all other
parties to the appeal includes intervenors, as they are parties to an
appeal under Sec. 214.3.
Comment: Two respondents commented that the Forest Service should
notify interested parties of appeal decisions. One of these respondents
noted that permit holders have a legal right to be notified of appeal
decisions that may impair their interests.
Response: Part 214 provides for the public, including permit
holders, to receive notice of appeal decisions. Part 214 requires the
availability of final appeal decisions and discretionary review
decisions to be posted on the Web site of the national forest, national
grassland, or region that issued the appealable decision or for Chief's
decisions, on the Web site of the Washington Office. The Department
does not believe that permit holders have a legal right to be notified
of appeal decisions that may impair their interests.
Comment: A respondent supported the provision requiring posting of
final appeal decisions on the internet, but stated that the provision
could be enhanced by requiring the decisions to be searchable.
Response: Final appeal decisions that are posted on the internet
must include the signature of the Appeal Deciding Officer and are
scanned and posted in a portable document format (PDF). A *.pdf is
searchable, depending on the software that is used to view the
document.
214.15--Resolution of Issues Prior to an Appeal Decision
Comment: A respondent commented that the statement in the
corresponding provision in the 251 Appeal Rule, ``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,'' was omitted from the the
proposed rule and should be reinstated.
Response: The quoted statement is referencing issues or concerns
that may arise before an appealable decision is made, which is
addressed in Sec. 214.7(b) of the proposed and in Sec. 214.6(b) of
the final rule. Accordingly, the phrase, ``to discuss any issues
related to the decision,'' from the quote has been inserted in Sec.
214.6(b). Resolution of issues prior to issuance of an appeal decision
is addressed in Sec. 214.15(a).
214.16--Oral Presentation
Comment: A respondent recommended retaining the wording in the
corresponding provision in the 251 Appeal Rule. Another respondent
stated that it was unfair of the Forest Service to schedule the oral
presentation early in the appeal process, since appellants usually want
to wait until the end of the appeal process to make a final
presentation of their appeal.
Response: Oral presentations are 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 would be
unfair and prejudicial to exclude it. Oral presentations are scheduled
within 10 days of the date a reply to the responsive statement is due.
At this point in the appeal process, the parties
[[Page 33714]]
to the appeal have submitted all their substantive filings, allowing
appellants to clarify or elaborate upon the information they have
provided based on the filings of other parties.
Comment: One respondent recommended that this section be amended to
address whether oral presentations may be conducted electronically and
to state that they are not evidentiary proceedings. Another respondent
objected to the lack of an opportunity to test the evidence in the
record and commented on the need for the Appeal Deciding Officer and
appellants to question Forest Service employees.
Response: The Department believes that the Appeal Deciding Officer
should have the option to conduct oral presentations in person,
telephonically, or via videoconferencing. Conducting oral presentations
telephoncially or via videoconferencing facilitates more meeting
options. The Department does not believe it is appropriate to address
specific operating procedures in the final rule, as Sec. Sec.
214.14(d) and 214.16(f) already authorize the Appeal Deciding Officer
to establish procedures for oral presentations.
Oral presentations are not evidentiary proceedings involving
examination and cross-examination of witnesses and are not subject to
formal rules of procedure. To clarify this intent, the Department has
added the following statement to the final rule at Sec. 214.16(b):
``Oral presentations are not evidentiary proceedings involving
examination and cross-examination of witnesses and are not subject to
formal rules of procedure.''
Comment: One respondent stated that the Forest Service should
create a transcript of oral presentations at the Agency's expense,
include the transcript in the appeal record, and provide a copy without
cost to all parties to the appeal.
Response: Per Sec. 214.17(b), all information filed with the
Appeal Deciding Officer, including a transcript of an oral
presentation, becomes part of the appeal record. Oral presentations are
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 would be unfair and prejudicial to exclude it. In addition,
Sec. 214.14(i) of the final rule requires parties to an appeal to bear
their own expenses, including costs associated with participating in an
oral presentation. Under these circumstances, the Department believes
that it is appropriate for the parties requesting a transcript to pay
for it.
214.17--Appeal Record
Comment: A respondent stated there is no opportunity to confirm the
contents of the appeal record and that it is critical that the appeal
record and the administrative record be the same. Another respondent
commented that the proposed rule would preclude appellants from
responding to evidence in the appeal record.
Response: The appeal record includes all of the documents filed
with the Appeal Deciding Officer, including the appealable decision,
appeal, intervention requests, 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. Since Part 214
provides an informal appeal process, the appeal record does not have to
adhere to the requirements for lodging an administrative record in a
formal proceeding. Part 214 affords appellants the opportunity to
respond to intervention requests and to reply to the responsive
statement.
Comment: One respondent commented that the proposed rule would
allow the Forest Service to deny appellants access to the file for a
proposed action concerning projects and activities implementing land
management plans and documented with a record of decision or decision
notice. This respondent noted that this is a significant problem
because the Forest Service often adds information to its file in light
of an appeal.
Another respondent recommended amending this section to identify
how and when the appeal record can be supplemented by the parties to an
appeal and by Forest Service officials.
Response: The first comment is beyond the scope of this rulemaking,
which does not address appeals of proposed actions concerning projects
and activities implementing land management plans and documented with a
record of decision or decision notice. At the time an appellant
prepares an appeal of one of these proposed actions, the project file
is available from the Forest Service office that issued the decision.
The appeal record does not close until the day after the date the
reply to the responsive statement is due, if no oral presentation is
conducted; the day after the oral presentation is conducted, if no
transcript of the oral presentation is prepared; or the day after the
date a transcript of the oral presentation is due, if one is being
prepared. In addition to the appealable decision, appeal, intervention
requests, responsive statement, reply, and oral presentation summary or
transcript, the appeal record includes any correspondence or other
documentation related to the appeal as determined by the Appeal
Deciding Officer. Moreover, the Appeal Deciding Officer may ask a party
for additional information to clarify appeal issues and may extend
appeal time periods to allow for submission of additional information
and to give the other parties an opportunity to review and comment.
Therefore, the Department does not believe it is necessary to provide
clarification on supplementation of the appeal record in the final
rule.
214.18--Appeal Decision
Comment: One respondent stated that if an appealable decision is
modified as a result of an appeal, the revised decision should also be
available for appeal by all interested members of the public.
Response: Decisions that are appealable are listed in Sec. 214.4.
Appealable decisions that are revised as a result of an appeal are not
included in the list of appealable decisions. The Department does not
believe it would be productive to allow appeal of decisions that are
revised as a result of an appeal.
Comment: One respondent was concerned about potential ambiguity in
the finality provision. This respondent believed that the provision
suggests that an appeal filed by a permittee or other special-status
stakeholder could be resolved by the Appeal Deciding Officer and become
the final administrative decision of the Department, without any
further appeal by any parties. This respondent stated that if this
interpretation is not what the Agency intended, the provision should be
revised to add the phrase, ``shall constitute USDA's final
administrative decision on the appeal.'' This respondent further stated
that if the Agency did intend the finality implied in the original
statement, the finality is wholly unacceptable and encourages secret
deals between the Agency and livestock operators with no recourse other
than litigation available to the public.
Response: Section 214.18(e) states that the appeal decision
constitutes USDA's final administrative decision, except where a
decision to conduct discretionary review has been made and a
discretionary review decision has been issued. The Department believes
that this provision clearly reflects the intent for the appeal decision
to be USDA's final administrative decision, unless discretionary review
is conducted and a
[[Page 33715]]
discretionary review decision is issued. It is important for part 214
to state when an administrative decision becomes final under the rule,
so that appellants know when they have exhausted their administrative
remedies. Part 214 limits parties to an appeal to holders, operators,
solicited applicants, intervenors, and the Responsible Official. Other
members of the public cannot be parties to an appeal under part 214.
214.19--Procedures for Discretionary Review
Comment: One respondent recommended reinstating the provision in
the 251 Appeal Rule providing for petitions or requests for
discretionary review to be considered by the Reviewing Officer.
Response: The determination to conduct discretionary review is not
triggered by a request from an appellant. Rather, the time period for
deciding whether to conduct discretionary review starts to run upon
receipt of the appeal decision, appeal, and appealable decision or
Chief's decision by the Discretionary Reviewing Officer.
Part 214 helps appellants by clarifying that they do not have to
request discretionary review to initiate the process.
214.20--Exhaustion of Administrative Remedies
Comment: One respondent suggested that this provision specifically
reference that it is subject to the exhaustion requirements of 7 U.S.C.
6912(e).
Response: The Department agrees with this suggestion and has added
a citation to 7 U.S.C. 6912(e) to this section in the final rule.
Other Parts of the CFR
222.60--Decisions Subject to Mediation
Comment: Several respondents objected to limiting mediation to
cancellation or suspension of term grazing permits. One respondent
commented that any decisions pertaining to grazing permits, not just
suspensions and cancellations, should be subject to mediation. Another
respondent objected to limiting mediation to cancellation or supension
of term grazing permits on the grounds that the stated rationale for
the limitation, that the state process must be confidential,
contradicts the language of the governing statute and makes no sense.
One respondent stated that all issues arising in connection with
management of NFS lands should be subject to mediation. Another
respondent stated that the Forest Service generally ignores requests
for mediation.
Response: These comments are outside the scope of the proposed
rule. No changes were proposed to the provisions governing mediation of
term grazing permit disputes. Rather, these provisions were merely
moved from one part of the CFR to another.
Summary of Changes to the Proposed Rule
Unless otherwise noted, the sections listed below are from the
final rule.
Section 214.2 Definitions
Appeal Deciding Officer. The term ``employee'' was replaced with
the term ``line officer.'' In addition, the phrase, ``and who is
authorized to issue an appeal decision under this part,'' was replaced
with the phrase, ``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.'' The same changes
were made to the definition of ``Appeal Deciding Officer'' in 36 CFR
215.2.
Discretionary Reviewing Officer. With respect to USDA, the term
``employee'' was replaced with the term ``official,'' and with respect
to the Forest Service, the term ``employee'' was replaced with the term
``line officer.''
Responsible Official. The term ``employee'' was replaced with the
term ``line officer,'' and the phrase, ``has the delegated authority to
make and implement,'' was added to make the definition for this term
consistent with its use in other parts of Title 36 of the CFR.
214.3 Parties to an Appeal
To clarify that holders, operators, and solicited applicants who
are not directly affected by an appealable decision may not appeal that
decision, the Department has revised this section to read: ``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
Paragraph (c)(1)(ii) was revised for clarity.
214.6 Election of Appeal Process
This provision in the proposed rule would allow the holder of a
written authorization who had standing under both parts 214 and 215 to
elect between the two, but not both. On December 23, 2011, President
Obama signed into law the Consolidated Appropriations Act, 2012, Public
Law 112-74, for the United States Department of the Interior and
Related Agencies, including the Forest Service. Section 428 of Public
Law 112-74 (Section 428) requires a predecisional objection process for
proposed actions of the Forest Service concerning projects and
activities implementing land management plans and documented with a
record of decision or decision notice, in place of a postdecisional
appeal process in this context. The Forest Service is in the process of
drafting regulations to implement Section 428.
Since Section 428 requires a predecisional administrative review
process and part 214 provides for a postdecisional administrative
review process, the two review procedures will not run in tandem.
Therefore, there is no longer a need to provide for election between
appeal procedures for proposed actions of the Forest Service concerning
projects and activities implementing land management plans and
documented with a record of decision or decision notice. Accordingly,
the Department has removed the election provision from the final rule.
The Department has made a corresponding change to part 215 by removing
Sec. 215.11(d).
Section 214.6 Notice of an Appealable Decision
Paragraph (a) has been changed to track its counterpart in the 251
Appeal Rule. Paragraph (a) now reads: ``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.''
Section 214.8 Appeal Content
Paragraph (a)(2) has been revised to require a brief description of
the decision being appealed, including the name and title of the
Responsible Official and the date of the decision, rather than a copy
of the decision being appealed. The requirement to include the name of
the project has been removed, as part 214 does not involve project
appeals. Paragraph (a)(3) has been revised to require the
identification number for the written authorization, if applicable.
Consistent with removal of the provision governing election of
appeal procedures, the Department has removed paragraph (b)(4) in the
proposed rule, which would have required appellants to cite the appeal
regulation under which they are filing if
[[Page 33716]]
they could file under more than one. A corresponding change has been
made to part 215 by removing Sec. 215.14(b)(5).
New Section 214.9 Filing of an Appeal
A new Sec. 214.9 has been added governing filing of an appeal.
This section addresses the timeframe for filing an appeal, which
formerly was addressed in the section on content of an appeal, and the
method for filing and responsibility for timely filing of an appeal,
both of which were addressed in the section of the proposed rule
governing conduct of an appeal.
The timeframe for filing an appeal has been changed from 30 to 45
days. In addition, the Department has removed the exception providing
for a 60-day timeframe for appeal of a decision revoking an easement
for abandonment pursuant to the Act of October 13, 1964 (16 U.S.C.
534), since revocation of an easement is not subject to appeal under
part 214. Rather, revocation of an easement is subject to appeal under
7 CFR part 1, subpart H.
Section 214.11 Intervention
Consistent with Sec. 214.8 governing appeal content, this section
has been revised to add to the submission requirements the requester's
name, mailing address, daytime telephone number, and email address, if
any; a brief description of the decision being appealed, including the
name and title of the Responsible Official and the date of the
decision; and 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.
Section 214.13 Stays
Paragraph (e) of this section has been revised to allow only a
party to the appeal to request that a stay be modified or lifted.
Section 214.14 Conduct of an Appeal
The introductory clause in the second sentence of paragraph (b),
relettered as paragraph (a) in the final rule, has been changed from,
``Questions regarding whether an appeal document has been timely filed
shall be resolved by the Appeal Deciding Officer based on the following
indicators,'' to ``The Appeal Deciding Officer shall determine
timeliness by the following indicators.''
Paragraphs (c)(1) and (c)(3) have been revised to refer to
``parties to an appeal,'' rather than ``parties.''
The Department has removed paragraph (e)(2), which provided for
consolidation of appeals filed under part 214 and other parts of the
CFR that involve common issues of fact and law, since the Section 428
predecisional administrative review process and art 214 postdecisional
administrative review process will not run in tandem. The remaining
paragraph has been renumbered.
Paragraph (g)(1) has been revised to provide for documentation of
service of filings in an appeal by stating that they must be
accompanied by a signed and dated certificate of service attesting that
all other parties have been served. In addition, paragraph (g)(1) has
been revised to state that filings in an appeal will not be considered
by the Appeal Deciding Officer unless they are accompanied by a
certificate of service.
Paragraph (h)(1), relettered as paragraph (g)(1) in the final rule,
has been modified to require prospective intervenors to send a copy of
their request to intervene to all parties to the appeal.
Section 214.16 Oral Presentation
A new paragraph (b), entitled ``Procedure,'' has been added, which
states that ``oral presentations are not evidentiary proceedings
involving examination and cross-examination of witnesses and are not
subject to formal rules of procedure.'' The remaining paragraphs have
been renumbered as appropriate.
Paragraph (c) has been modified to state that oral presentations
shall be conducted in an informal manner.
Paragraph (h) has been revised to refer to ``parties to an
appeal,'' rather than ``parties.''
Section 214.20 Exhaustion of Administration Remedies
A reference to 7 U.S.C. 6912(e), the statute governing exhaustion
of administrative remedies provided by USDA, has been added.
Part 222--Range Management
The sequence of the subparts in part 222 has been changed in the
final rule. Subpart D, Mediation of Term Grazing Permit Disputes, in
the proposed rule has been relettered as subpart B in the final rule,
since mediation involves decisions to cancel or suspend a term grazing
permit, and subpart A governs cancellation and suspension of grazing
permits. Subpart B, Management of Wild Free-Roaming Horses and Burros,
in the current rule has been moved to subpart D, after subpart C,
Grazing Fees, since the subpart governing wild free-roaming horses and
burros does not relate to grazing permits.
Regulatory Certifications
Regulatory Impact
This final rule has been reviewed under USDA procedures and
Executive Order 12866, Regulatory Planning and Review. It has been
determined that this is not a significant rule. This final rule will
not have an annual effect of $100 million or more on the economy, nor
will the final rule adversely affect productivity, competition, jobs,
the environment, public health or safety, or State and local
governments. This final rule will not interfere with any action taken
or planned by another agency or raise new legal or policy issues.
Finally, this final rule will not alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of beneficiaries of those programs.
Moreover, the Department has considered this final rule in light of
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The Department
has determined that the final rule will not have a significant economic
impact on a substantial number of small entities as defined by that
Act. Therefore, a regulatory flexibility analysis is not required for
this final rule.
Environmental Impact
This final rule revises the procedures and requirements for the
administrative appeal of certain decisions related to written
authorizations for the occupancy or use of NFS lands and resources.
Forest Service regulations at 36 CFR 220.6(d)(2) exclude from
documentation in an environmental assessment or environmental impact
statement ``rules, regulations, or policies to establish servicewide
administrative procedures, program processes, or instruction.'' The
Department has determined that this final rule falls within this
category of actions and that no extraordinary circumstances exist which
require preparation of an environmental assessment or environmental
impact statement.
Energy Effects
The Department has reviewed this final rule under Executive Order
13211, Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use. The Department has determined that this
final rule does not constitute a significant energy action as defined
in the Executive Order.
Controlling Paperwork Burdens on the Public
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3520), the Forest Service requested and
[[Page 33717]]
received approval of a new information collection requirement for part
214: OMB Number: 0596-0231. During the public comment period for
proposed part 214, comments were sought on the information collection
requirement associated with the administrative appeal process in part
214; no comments on the information collection requirement were
received.
Federalism
The Department has considered this final rule under Executive Order
13132 on federalism. The Department has determined that this final rule
conforms with the federalism principles set out in this executive
order; will not impose any compliance costs on the States; and will not
have substantial direct effects on the States, on the relationship
between the Federal government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Therefore, the Department concludes that this final rule does not have
federalism implications.
Consultation and Coordination With Indian Tribal Governments
In accordance with Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments, the Forest Service is
committed to government-to-government consultation on Agency policy
that could have an impact on tribes. In that spirit, information about
the proposed rule was sent to the Regional Offices, with guidance to
distribute the information to tribes in their region and to follow up
with visits to tribes if requests for consultation were received. A
total of 120 days was provided for this process.
Two comments from tribes were received, and no requests for
government-to-government consultation were made. One respondent asked
for early notification and consultation on actions affecting tribal
treaty or other legal rights, and another respondent inquired whether
part 214 would affect administration of a Preservation Trust Area. No
changes were made to the proposed rule in response to these comments.
The Department has determined that this final rule does not have
substantial direct or unique effects on Indian tribes. This final rule
is revising administrative appeal regulations for decisions relating to
occupancy or use of NFS lands and resources. In accordance with part
214, tribal governments may participate in the administrative appeal
process either as appellants or intervenors.
No Takings Implications
The Department has analyzed this final rule in accordance with the
principles and criteria contained in Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights. The Department has determined that this final rule
will not pose the risk of a taking of private property.
Civil Justice Reform
The Department has reviewed this final rule under Executive Order
12988 on civil justice reform. Upon adoption of this final rule, (1)
all State and local laws and regulations that conflict with this rule
or that impede full implementation of the rule will be preempted; (2)
no retroactive effect will be given to this final rule; and (3) this
final rule will not require the use of administrative proceedings
before parties can file suit in court challenging its provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Department has assessed the effects of this
final rule on State, local, and tribal governments and the private
sector. This final rule will not compel the expenditure of $100 million
or more by any State, local, or tribal government or anyone in the
private sector. Therefore, a statement under section 202 of the act is
not required.
List of Subjects
36 CFR Part 212
Highways and roads, National forests, Public lands--rights-of-way,
and Transportation.
36 CFR Part 214
Administrative practice and procedure, National forests.
36 CFR Part 215
Administrative practice and procedure, National forests, National
grassland.
36 CFR Part 222
Range management, National forests, National grassland.
36 CFR Part 228
Environmental protection, Mines, National forests, Oil and gas
exploration, Public lands--mineral resources, Public lands--rights-of-
way, Reporting and recordkeeping requirements, Surety bonds, Wilderness
areas.
36 CFR Part 241
Fish, Intergovernmental relations, National forests, Wildlife,
Wildlife refuges.
36 CFR Part 251
Administrative practice and procedure, Electric power, National
forests, Public lands--rights-of-way, Reporting and recordkeeping
requirements, Water resources.
36 CFR Part 254
Community facilities, National forests.
36 CFR Part 292
Mineral resources, Recreation and recreation areas.
Therefore, for the reasons set forth in the preamble, the Forest
Service is amending Chapter II of Title 36 of the CFR as follows:
PART 212--ADMINISTRATION OF THE FOREST TRANSPORTATION SYSTEM
0
1. The authority citation for part 212 continues to read as follows:
Authority: 16 U.S.C. 551, 23 U.S.C. 205.
0
2. In Sec. 212.8, revise paragraph (d)(5) to read as follows:
Sec. 212.8 Permission to cross lands and easements owned by the
United States and administered by the Forest Service.
* * * * *
(d) * * *
(5)(i) The Chief may revoke any easement granted under the
provisions of the Act of October 13, 1964 (78 Stat. 1089, 16 U.S.C.
534):
(A) By consent of the owner of the easement;
(B) By condemnation; or
(C) Upon abandonment after a 5-year period of nonuse by the owner
of the easement.
(ii) Before any easement is revoked upon abandonment, the owner of
the easement shall be given notice and, upon the owner's request made
within 60 days after receipt of the notice, shall be given an appeal in
accordance with the provisions of 36 CFR part 214.
0
3. Add part 214 to read as follows:
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.
[[Page 33718]]
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.
Sec. 214.1 Purpose and scope.
(a) Purpose. This part provides a fair and deliberate process by
which holders, operators, and solicited applicants may appeal certain
written decisions issued by Responsible Officials involving written
instruments authorizing the occupancy or use of National Forest System
lands and resources.
(b) Scope. This part specifies who may appeal, decisions that are
appealable and not appealable, the responsibilities of parties to an
appeal, and the time periods and procedures that govern the conduct of
appeals under this part.
Sec. 214.2 Definitions.
Appeal. A document filed with an Appeal Deciding Officer in which
an individual or entity seeks review of a Forest Service decision under
this part.
Appeal Deciding Officer. The Forest Service 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 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 agreed-upon condition, event, or
time as specified in the authorization, which does not require a
decision by a Responsible Official to take effect.
Written authorization. A term grazing permit, plan of operations,
special use authorization, mineral material contract or permit, or
other type of written instrument issued by the Forest Service or a
lease or permit for leasable minerals issued by the U.S. Department of
the Interior that authorizes the occupancy or use of National Forest
System lands or resources and specifies the terms and conditions under
which the occupancy or use may occur.
Sec. 214.3 Parties to an appeal.
Parties to an appeal under this part are limited to the holder,
operator, or solicited applicants who are directly affected by an
appealable decision, intervenors, and the Responsible Official.
Sec. 214.4 Decisions that are appealable.
To be appealable under this part, a decision must be issued by a
Responsible Official in writing and must fall into one of the following
categories:
(a) Livestock grazing. (1) Modification of a term grazing permit
issued under 36 CFR part 222, subpart A. Issuance of annual operating
instructions does not constitute a permit modification and is not an
appealable decision;
(2) Suspension or cancellation, other than cancellation resulting
from the permittee's waiver to the United States, of a term grazing
permit issued under 36 CFR part 222, subpart A;
(3) Denial of reauthorization of livestock grazing under a term
grazing permit if the holder files an application for a new permit
before the existing permit expires; or
(4) Denial of a term grazing permit to a solicited applicant under
36 CFR part 222, subpart C.
(b) Minerals. (1) Approval or denial of an initial, modified, or
supplemental plan of operations or operating plan; requirement of an
increase in bond coverage; requirement of measures to avoid irreparable
injury, loss, or damage to surface resources pending modification of a
plan of operations or operating plan; or issuance of a notice of
noncompliance pursuant to 36 CFR part 228, subpart A or D, or part 292,
subpart D, F, or G;
(2) Approval or denial of an operating plan, issuance of a notice
of noncompliance, 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
[[Page 33719]]
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 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.
Sec. 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 Sec. 214.4.
Sec. 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
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.
Sec. 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.
Sec. 214.8 Appeal content.
(a) General requirements for the contents of an appeal. All appeals
must include:
(1) The appellant's name, mailing address, daytime telephone
number, and 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
[[Page 33720]]
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 Sec. 214.8(a), the following
specific requirements must be included in an appeal, where applicable:
(1) A request for an oral presentation under Sec. 214.16;
(2) A request for a stay under Sec. 214.13; and
(3) A request to participate in a state mediation program regarding
certain term grazing permit disputes under 36 CFR part 222, subpart B.
Sec. 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 ensuring
timely filing of appeal documents.
Sec. 214.10 Dismissal of an appeal.
(a) The Appeal Deciding Officer shall dismiss an appeal without
review when one or more of the following applies:
(1) The appeal is not filed within the required time period.
(2) The person or entity that filed the appeal is not a holder, an
operator, or a solicited applicant of a written authorization that is
the subject of the appealable decision.
(3) The decision is not appealable under this part.
(4) The appeal does not meet the content requirements specified in
Sec. 214.8(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
Sec. 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.
Sec. 214.11 Intervention.
(a) Eligibility to intervene. To participate as an intervenor in
appeals under this part, a party must:
(1) Be a holder, 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;
(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 Sec. 214.10.
Sec. 214.12 Responsive statement and reply.
(a) Responsive statement. The Responsible Official shall prepare a
responsive statement addressing the factual and legal allegations in
the appeal. The responsive statement and any supporting documentation
shall be filed with the Appeal Deciding Officer within 20 days of
receipt of the appeal or the unsuccessful conclusion of mediation
conducted pursuant to 36 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.
Sec. 214.13 Stays.
(a) Implementation. An appealable decision shall be implemented
unless an authorized stay is granted under Sec. 214.13(b) or an
automatic stay goes into effect under Sec. 214.13(c).
(b) Authorized stays. Except where a stay automatically goes into
effect under Sec. 214.13(c), the Appeal Deciding Officer may grant a
written request to stay the decision that is the subject of an appeal
under this part.
(1) Stay request. To obtain a stay, an appellant must include a
request for a stay in the appeal pursuant to Sec. 214.8(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 or denying a stay request within 10 days after a
responsive statement or an intervention request is
[[Page 33721]]
filed, whichever is later. The stay decision shall be in writing and
shall briefly explain the basis for granting or denying the stay
request.
(c) Automatic stays. The following decisions are automatically
stayed once an appeal is filed by a holder, operator, or solicited
applicant:
(1) Decisions to issue a written authorization pursuant to a
prospectus;
(2) Decisions to recalculate revenue-based land use fees for a
special use 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 Sec.
214.13(c)(1) and (c)(2) shall remain in effect until a final
administrative decision is issued in the appeal, unless they are
modified or lifted in accordance with Sec. 214.13(e). Automatic stays
under Sec. 214.13(c)(3) shall remain in effect for the duration of the
mediation period as provided in 36 CFR 222.22.
(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.
Sec. 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
(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.
(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.
(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.
Sec. 214.15 Resolution of issues prior to an appeal decision.
(a) The Responsible Official may discuss an appeal with a party or
parties to narrow issues, agree on facts, and explore opportunities to
resolve one or more of the issues in dispute by means other than
issuance of an appeal decision.
(b) The Responsible Official who issued a decision under appeal may
withdraw the decision, in whole or in part, during an appeal to resolve
one or more issues in dispute. The Responsible Official shall notify
the parties to the appeal and the Appeal Deciding Officer of the
withdrawal. If the withdrawal of the decision eliminates all the issues
in dispute in the appeal, the Appeal
[[Page 33722]]
Deciding Officer shall dismiss the appeal under Sec. 214.10.
Sec. 214.16 Oral presentation.
(a) Purpose. The purpose of an oral presentation is to provide
parties to an appeal with an opportunity to 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 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 Sec. 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.
Sec. 214.17 Appeal record.
(a) Location. The Appeal Deciding Officer shall maintain the appeal
record in one location.
(b) Contents. The appeal record shall consist of information filed
with the Appeal Deciding Officer, including the appealable decision,
appeal, intervention request, responsive statement, reply, oral
presentation summary or transcript, procedural orders and other
rulings, and any correspondence or other documentation related to the
appeal as determined by the Appeal Deciding Officer.
(c) Closing of the record. (1) The Appeal Deciding Officer shall
close the appeal record on:
(i) The day after the date the reply to the responsive statement is
due if no oral presentation is conducted;
(ii) The day after the oral presentation is conducted if no
transcript of the oral presentation is being prepared; or
(iii) The day after 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.
Sec. 214.18 Appeal decision.
(a) Appeal decisions made by the Appeal Deciding Officer shall be
issued within 30 days of the date the appeal record is closed.
(b) The appeal decision shall be based solely on the appeal record
and oral presentation, if one is conducted.
(c) The appeal decision shall conform to all applicable laws,
regulations, policies, and procedures.
(d) The appeal decision may affirm or reverse the appealable
decision, in whole or in part. The appeal decision must specify the
basis for affirmation or reversal and may include instructions for
further action by the Responsible Official.
(e) Except where a decision to conduct discretionary review has
been made and a discretionary review decision has been issued, the
appeal decision shall constitute USDA's final administrative decision.
Sec. 214.19 Procedures for discretionary review.
(a) Initiation. (1) One day after issuance of an appeal decision,
the Appeal Deciding Officer shall send a copy of the appeal decision,
appeal, and appealable decision to the Discretionary Reviewing Officer
to determine whether discretionary review of the appeal decision should
be conducted.
(2) One day after issuance of a Chief's decision that is eligible
for discretionary review under Sec. 214.7(b)(2), the Chief shall send
the decision to the Discretionary Reviewing Officer to determine
whether discretionary review should be conducted.
(b) Criteria for determining whether to conduct discretionary
review. In deciding whether to conduct discretionary review, the
Discretionary Reviewing Officer should, at a minimum, consider the
degree of controversy surrounding the decision, the potential for
litigation, and the extent to which the decision establishes precedent
or new policy.
(c) Time period. Upon receipt of the appeal decision, appeal, and
appealable decision or Chief's decision, the Discretionary Reviewing
Officer shall have 30 days to determine whether to conduct
discretionary review and may request the appeal record or the record
related to the Chief's decision during that time to assist in making
that determination. If a request for the record is made, it must be
transmitted to the Discretionary Reviewing Officer within 5 days.
(d) Notification. The Discretionary Reviewing Officer shall notify
the parties and the Appeal Deciding Officer in writing of a decision to
conduct discretionary review. The Discretionary Reviewing Officer may
notify the parties and the Appeal Deciding Officer of a decision not to
conduct discretionary review within 30 days. If the Discretionary
Reviewing Officer takes no action within 30 days of receipt of the
appeal decision, appeal, and appealable decision or Chief's decision,
the appeal decision or Chief's decision shall constitute USDA's final
administrative decision.
(e) 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 Sec.
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
Chief's decision shall constitute USDA's final administrative decision.
Sec. 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
[[Page 33723]]
plaintiff has exhausted the administrative remedies under this part.
Sec. 214.21 Information collection requirements.
The rules of this part governing appeal of decisions relating to
occupancy or use of National Forest System lands and resources specify
the information that an appellant must provide in an appeal. Therefore,
these rules contain information collection requirements as defined in 5
CFR part 1320. These information collection requirements are assigned
Office of Management and Budget Control Number 0596-0231.
Sec. 214.22 Applicability and effective date.
This part prescribes the procedure for administrative review of
appealable decisions and Chief's decisions set forth in Sec. 214.4
issued on or after June 5, 2013.
PART 215--NOTICE, COMMENT, AND APPEAL PROCEDURES FOR NATIONAL
FOREST SYSTEM PROJECTS AND ACTIVITIES
0
4. The authority citation for part 215 continues to read as follows:
Authority: 16 U.S.C. 472, 551; sec. 322, Pub. L. 102-381
(Appeals Reform Act), 106 Stat. 1419 (16 U.S.C. 1612 note).
0
5. In Sec. 215.1, revise paragraph (b) to read as follows:
Sec. 215.1 Purpose and scope.
* * * * *
(b) Scope. Notice of proposed actions and opportunity to comment
provide an opportunity for the public to provide meaningful input prior
to the decision on projects and activities implementing land management
plans. The rules of this part complement other opportunities to
participate in the Forest Service's project and activity planning, such
as those provided by the National Environmental Policy Act of 1969
(NEPA) and its implementing regulations at 40 CFR parts 1500-1508 and
36 CFR part 220; the National Forest Management Act (NFMA) and its
implementing regulations at 36 CFR part 219; and the regulations at 36
CFR part 216 governing public notice and comment for certain Forest
Service directives.
0
6. In Sec. 215.2, revise the definitions for ``Appeal,'' ``Appeal
Deciding Officer,'' ``Appeal record,'' ``Appellant,'' and ``Responsible
Official'' to read as follows:
Sec. 215.2 Definitions.
* * * * *
Appeal--A document filed with an Appeal Deciding Officer in which
an individual or entity seeks review of a Forest Service decision under
this part.
Appeal Deciding Officer--The U.S. Department of Agriculture (USDA)
official or 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 record-Documentation and other information filed with the
Appeal Deciding Officer within the relevant time period by parties to
an appeal and upon which review of an appeal is conducted.
* * * * *
Appellant--An individual or entity that has filed an appeal of a
decision under this part.
* * * * *
Responsible Official--The Forest Service line officer who has the
delegated authority to make and implement a decision that may be
appealed under this part.
* * * * *
Sec. 215.11 [Amended]
0
7. In Sec. 215.11, remove paragraph (d).
Sec. 215.14 [Amended]
0
8. In Sec. 215.14, remove paragraph (b)(5), and redesignate paragraphs
(b)(6) through (9) as paragraphs (b)(5) through (8).
0
9. In Sec. 215.15, revise paragraph (c) to read as follows:
Sec. 215.15 Appeal time periods and process.
* * * * *
(c) Evidence of timely filing. Parties to an appeal are responsible
for ensuring timely filing of appeal documents. Questions regarding
whether an appeal document has been timely filed shall be resolved by
the Appeal Deciding Officer based on the following indicators:
(1) The date of the U.S. Postal Service postmark for an appeal
received before the close of the fifth business day after the appeal
filing date;
(2) The electronically generated posted date and time for 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
(4) The official agency date stamp showing receipt of hand
delivery.
* * * * *
PART 222--RANGE MANAGEMENT
0
10. The authority citation for part 222 is revised to read as follows:
Authority: 7 U.S.C. 1010-1012, 5101-5106; 16 U.S.C. 551, 572,
5801; 31 U.S.C. 9701; 43 U.S.C. 1751, 1752, 1901; E.O. 12548 (51 FR
5985).
Subpart B--[Redesignated as Subpart D]
0
11. Redsignate subpart B, consisting of Sec. Sec. 222.20 through
222.36, as subpart D, consisting of Sec. Sec. 222.60 through 222.76,
and revise the newly redesignated subpart D authority citation to read
as follows:
Subpart D--Management of Wild Free-Roaming Horses and Burros
Authority: 7 U.S.C. 1011; 16 U.S.C. 551, 1331-1340; 43 U.S.C.
1901 note.
0
12. Add a new subpart B to read as follows:
Subpart B--Mediation of Term Grazing Permit Disputes
Sec.
222.20 Decisions subject to mediation.
222.21 Parties.
222.22 Stay of appeal.
222.23 Confidentiality.
222.24 Records.
222.25 Costs.
222.26 Ex parte communications.
Authority: 7 U.S.C. 5101-5106; 16 U.S.C. 472, 551.
Subpart B--Mediation of Term Grazing Permit Disputes
Sec. 222.20 Decisions subject to mediation.
The holder of a term grazing permit issued in a State with a
mediation program certified by the U.S. Department of Agriculture may
request mediation of a dispute relating to a decision to suspend or
cancel the permit as authorized by 36 CFR 222.4(a)(2)(i), (ii), (iv),
and (v) and (a)(3) through (6). Any request for mediation must be
included in an appeal of the decision to suspend or cancel the permit
filed in accordance with 36 CFR part 214.
Sec. 222.21 Parties.
Only the following may be parties to mediation of a term grazing
permit dispute:
(a) A mediator authorized to mediate under a State mediation
program certified by the U.S. Department of Agriculture;
(b) The Chief, Forest Service, or other Forest Service employee who
made the decision being mediated or his or her designee;
[[Page 33724]]
(c) The holder whose term grazing permit is the subject of the
decision and who has requested mediation in an appeal filed in
accordance with the procedures at 36 CFR part 214;
(d) That holder's creditors, if applicable; and
(e) Legal counsel, if retained. The Forest Service will have legal
representation in the mediation only if the holder has legal
representation in the mediation.
Sec. 222.22 Stay of appeal.
If an appellant requests mediation of a decision subject to
mediation under Sec. 222.20 in an appeal filed under 36 CFR part 214,
the Appeal Deciding Officer shall immediately notify all parties to the
appeal that all appeal deadlines are automatically stayed for 45 days
to allow for mediation. If a mediated agreement is not reached in 45
days, the Appeal Deciding Officer may extend the automatic stay for
another 15 days if there is a reasonable possibility that a mediated
agreement can be achieved within that timeframe. If an agreement is not
achieved at the end of the 45- or 60-day mediation process, the Appeal
Deciding Officer shall immediately notify all parties to the appeal
that mediation was unsuccessful, that the stay has expired, and that
the time periods and procedures applicable to an appeal under 36 CFR
part 214 are reinstated.
Sec. 222.23 Confidentiality.
Mediation sessions and dispute resolution communications as defined
in 5 U.S.C. 571(5) shall be confidential. Any mediation agreement
signed by a Forest Service official and the holder of a term grazing
permit is subject to public disclosure.
Sec. 222.24 Records.
Notes taken or factual material shared during mediation sessions
shall not be included in the appeal record prepared in accordance with
the procedures at 36 CFR part 214.
Sec. 222.25 Costs.
The Forest Service shall cover only those costs incurred by its own
employees in mediation sessions.
Sec. 222.26 Ex parte communications.
The Chief of the Forest Service or other Forest Service employee
who made the decision being mediated, or his or her designee, shall not
discuss mediation with the Appeal Deciding Officer, except to request
an extension of time or to communicate the results of mediation.
Subpart C--[Amended]
0
13. The authority citation for subpart C of part 222 is revised to read
as follows:
Authority: 16 U.S.C. 551; 31 U.S.C. 9701; 43 U.S.C. 1751, 1752,
1901; E.O. 12548 (51 FR 5985).
PART 228--MINERALS
0
14. The authority citation for part 228 is revised to read as follows:
Authority: 16 U.S.C. 478, 551; 30 U.S.C. 226, 352, 601, 611; 94
Stat. 2400.
Subpart A--Locatable Minerals
0
15. Revise Sec. 228.14 to read as follows:
Sec. 228.14 Appeals.
Appeal of decisions of an authorized officer made pursuant to this
subpart is governed by 36 CFR part 214 or 215.
Subpart C--Disposal of Mineral Materials
0
16. In Sec. 228.65, revise paragraph (b)(4) to read as follows:
Sec. 228.65 Payment for sales.
* * * * *
(b) * * *
(4) If the purchaser fails to make payments when due, the contract
will be considered breached, the authorized officer will cancel the
contract, and all previous payments will be forfeited without prejudice
to any other rights and remedies of the United States.
* * * * *
0
17. In Sec. 228.66 revise paragraph (c) to read as follows:
Sec. 228.66 Refunds.
* * * * *
(c) Cancellation. (1) If the contract is cancelled by the
authorized officer for reasons which are beyond the purchaser's
control; or
(2) If the contract is cancelled by mutual agreement. This refund
provision is not a warranty that a specific quantity of material exists
in the sale area.
Subpart E--Oil and Gas Resources
0
18. In Sec. 228.107, revise paragraph (c) to read as follows:
Sec. 228.107 Review of surface use plan of operations.
* * * * *
(c) Notice of decision. The authorized Forest officer shall give
public notice of the decision on a surface use plan of operations and
include in the notice that the decision is subject to appeal under 36
CFR part 214 or 215.
* * * * *
PART 241--FISH AND WILDLIFE
0
19. The authority citation for part 241 continues to read as follows:
Authority: 16 U.S.C. 472, 539, 551, 683.
Subpart B--Conservation of Fish, Wildlife, and Their Habitat,
Chugach National Forest, Alaska
0
20. In Sec. 241.22, revise paragraphs (e) and (f) to read as follows:
Sec. 241.22 Consistency determinations.
* * * * *
(e) Subject to valid existing rights, the responsible Forest
Officer may revoke, suspend, restrict, or require modification of any
activity if it is determined that such measures are required to
conserve wildlife, fish, or their habitat within areas of the Chugach
National Forest subject to this subpart. Prior to taking action to
revoke, suspend, restrict, or require modification of an activity under
this section, the responsible Forest Officer shall give affected
parties reasonable prior notice and an opportunity to comment, unless
it is determined that doing so would likely result in irreparable harm
to conservation of fish, wildlife, and their habitat.
(f) Decisions made pursuant to this section are subject to appeal
only as provided in 36 CFR part 214.
* * * * *
PART 251--LAND USES
0
21. The authority citation for part 251 continues to read as follows:
Authority: 16 U.S.C. 472, 479b, 551, 1134, 3210, 6201-13; 30
U.S.C. 1740, 1761-1771.
Subpart A--Miscellaneous Land Uses
0
22. The authority citation for part 251, subpart A, continues to read
as follows:
Authority: 7 U.S.C. 1011; 16 U.S.C. 518, 551, 678a; Pub. L. 76-
867, 54 Stat. 1197.
0
23. Amend Sec. 251.15 by revising paragraphs (a)(2)(iv) and (a)(3) to
read as follows:
Sec. 251.15 Conditions, rules, and regulations to govern exercise of
mineral rights reserved in conveyances to the United States.
(a) * * *
(2) * * *
(iv) Failure to comply with the terms and conditions of the permit
shall be cause for revocation of all rights to use, occupy, or disturb
the surface of the
[[Page 33725]]
lands covered by the permit, but in the event of revocation, a new
permit shall be issued upon application when the causes for revocation
of the preceding permit have been satisfactorily remedied and the
United States has been reimbursed for any damages it has incurred from
the noncompliance.
(3) All structures, other improvements, and materials shall be
removed from the lands within one year after the date of revocation of
the permit.
* * * * *
Subpart B--Special Uses
0
24. The authority citation for part 251, subpart B, continues to read
as follows:
Authority: 16 U.S.C. 460l-6a, 460l-6d, 472, 497b, 497c, 551,
580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1771.24.
0
25. In Sec. 251.51 revise the definitions for ``Holder,''
``Revocation,'' ``Special use authorization,'' and ``Termination'' to
read as follows:
Sec. 251.51 Definitions.
* * * * *
Holder--an individual or entity that holds a valid special use
authorization.
* * * * *
Revocation--the cessation, in whole or in part, of a special use
authorization by action of an authorized officer before the end of the
specified period of use or occupancy for reasons set forth in Sec.
251.60(a)(1)(i), (a)(2)(i), (g), and (h) of this subpart.
* * * * *
Special use authorization--a written permit, term permit, lease, or
easement that authorizes use or occupancy of National Forest System
lands and specifies the terms and conditions under which the use or
occupancy may occur.
* * * * *
Termination--the cessation of a special use authorization by
operation of law or by operation of a fixed or agreed-upon condition,
event, or time as specified in the authorization, which does not
require a decision by an authorized officer to take effect, such as
expiration of the authorized term; change in ownership or control of
the authorized improvements; or change in ownership or control of the
holder of the authorization.
* * * * *
0
26. In Sec. 251.54, revise the last sentence of paragraph (g)(3)(iii)
to read as follows:
Sec. 251.54 Proposal and application requirements and procedures.
* * * * *
(g) * * *
(3) * * *
(iii) * * * A denial of an application in paragraphs (g)(3)(ii)(A)
through (g)(3)(ii)(H) of this section constitutes final agency action,
is not subject to administrative appeal, and is immediately subject to
judicial review.
* * * * *
0
27. In Sec. 251.60, revise paragraphs (a)(1)(ii), (a)(2)(ii), and
(h)(2) to read as follows:
Sec. 251.60 Termination, revocation, and suspension.
(a) * * *
(1) * * *
(ii) Judicial review. Revocation or suspension of a special use
authorization under this paragraph constitutes final agency action, is
not subject to administrative appeal, and is immediately subject to
judicial review.
* * * * *
(2) * * *
(ii) Administrative review. Except for revocation or suspension of
an easement issued pursuant to Sec. 251.53(e) or Sec. 251.53(l) of
this subpart, revocation or suspension of a special use authorization
under this paragraph is subject to appeal pursuant to 36 CFR part 214.
* * * * *
(h) * * *
(2) Before any such easement is revoked upon abandonment, the owner
of the easement shall be given notice and, upon the owner's request
made within 60 days after receipt of the notice, shall be given an
appeal in accordance with the provisions of 36 CFR part 214.
* * * * *
0
28. Revise Sec. 251.61 to read as follows:
Sec. 251.61 Applications for new, changed, or additional uses or
area.
(a) Holders shall file a new or amended application for
authorization of any new, changed, or additional uses or area,
including any changes that involve any activity that has an impact on
the environment, other uses, or the public. In approving or denying
new, changed, or additional uses or area, the authorized officer shall
consider, at a minimum, the findings or recommendations of other
affected agencies and whether to revise the terms and conditions of the
existing authorization or issue a new authorization. Once approved, any
new, changed, or additional uses or area must be reflected in the
existing or a new authorization.
(b) A holder may be required to furnish as-built plans, maps, or
surveys upon completion of construction.
Subpart C--[Removed and Reserved]
0
29. Remove and reserve subpart C, consisting of Sec. Sec. 251.80
through 251.103.
Subpart E--Revenue-Producing Visitor Services in Alaska
0
30. The authority citation for part 251, subpart E, continues to read
as follows:
Authority: 16 U.S.C. 3197.
0
31. Revise Sec. 251.126 to read as follows:
Sec. 251.126 Appeals.
Decisions related to the issuance of special use authorizations in
response to written solicitations by the Forest Service under this
subpart or related to the modification of special use authorizations to
reflect historical use are subject to administrative appeal under 36
CFR part 214.
PART 254--LANDOWNERSHIP ADJUSTMENTS
Subpart A--Land Exchanges
0
32. The authority citation for part 254, subpart A, is revised to read
as follows:
Authority: 7 U.S.C. 428a(a) and 1011; 16 U.S.C. 484a, 485, 486,
516, 551, 555a; 43 U.S.C. 1701, 1715, 1716, 1740.
0
33. In Sec. 254.4, revise paragraph (g) to read as follows:
Sec. 254.4 Agreement to initiate an exchange.
* * * * *
(g) The withdrawal from an exchange proposal by the authorized
officer at any time prior to the notice of decision pursuant to Sec.
254.13 of this subpart is not appealable under 36 CFR part 214 or 215.
0
34. In Sec. 254.13, revise paragraph (b) to read as follows:
Sec. 254.13 Approval of exchanges; notice of decision.
* * * * *
(b) The decision to approve or disapprove an exchange proposal
shall be subject to appeal as provided under 36 CFR part 214 or 215 for
45 days after the date of publication of a notice of availability of
the decision.
0
35. In Sec. 254.14, revise paragraph (b)(6) to read as follows:
Sec. 254.14 Exchange agreement.
* * * * *
(b) * * *
(6) In the event of an appeal under 36 CFR part 214 or 215, a
decision to approve an exchange proposal pursuant to Sec. 254.13 of
this subpart is upheld; and
* * * * *
[[Page 33726]]
0
36. In Sec. 254.15, revise the last sentence of paragraph (c)(2) to
read as follows:
Sec. 254.15 Title standards.
* * * * *
(c) * * *
(2) * * * If an agreement cannot be reached, the authorized officer
shall consider other alternatives to accommodate the authorized use or
shall determine whether there are specific and compelling reasons in
the public interest for revoking the authorization for that use
pursuant to 36 CFR 251.60.
PART 292--NATIONAL RECREATION AREAS
Subpart C--Sawtooth National Recreation Area--Private Lands
0
37. The authority citation for part 292, subpart C, continues to read
as follows:
Authority: Sec. 4(a), Act of Aug. 22, 1972 (86 Stat. 613).
0
38. In Sec. 292.15, revise paragraph (l) to read as follows:
Sec. 292.15 General provisions--procedures.
* * * * *
(l) Appeals. Denial or revocation of a certification of compliance
under this subpart is subject to appeal under 36 CFR part 214.
Subpart D--Sawtooth National Recreation Area--Federal Lands
0
39. The authority citation for part 292, subpart D, is revised to read
as follows:
Authority: 16 U.S.C. 460aa-10, 478, 551.
0
40. In Sec. 292.18, revise paragraph (f) to read as follows:
Sec. 292.18 Mineral resources.
* * * * *
(f) Operating plans--suspension, revocation, or modification. The
authorized officer may suspend or revoke authorization to operate in
whole or in part where such operations are causing substantial
impairment which cannot be mitigated. At any time during operations
under an approved operating plan, the operator may be required to
modify the operating plan to minimize or avoid substantial impairment
of the values of the SNRA.
* * * * *
Dated: March 25, 2013.
Authur L. Blazer,
Deputy, Under Secretary, U.S. Forest Service.
[FR Doc. 2013-13260 Filed 6-4-13; 8:45 am]
BILLING CODE 3410-11-P