[Code of Federal Regulations]
[Title 36, Volume 2]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 36CFR251.100]

[Page 341]
 
              TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY
 
          CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE
 
PART 251_LAND USES--Table of Contents
 
Subpart C_Appeal of Decisions Relating to Occupancy and Use of National 
                           Forest System Lands
 
Sec. 251.100  Discretionary review.

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

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

[[Page 342]]