[Federal Register Volume 60, Number 250 (Friday, December 29, 1995)]
[Rules and Regulations]
[Pages 67298-67319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31397]
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DEPARTMENT OF AGRICULTURE
Office of the Secretary
Farm Service Agency
Natural Resources Conservation Service
Rural Business-Cooperative Service
Rural Housing Service
Rural Utilities Service
7 CFR Parts 1, 11, 12, 400, 614, 620, 623, 631, 632, 634, 663, 701,
702, 752, 780, 781, and 1900
National Appeals Division Rules of Procedure
AGENCY: Office of the Secretary, National Appeals Division, USDA.
ACTION: Interim final rule.
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SUMMARY: On May 22, 1995 (60 FR 27044), the National Appeals Division
(NAD) in the Office of the Secretary published a proposed rule to
implement Title II, Subtitle H, of the Federal Crop Insurance Reform
and Department of Agriculture Reorganization Act of 1994, Pub. L. 103-
354, 7 U.S.C. 6991 et seq., by setting forth procedures for program
participant appeals of adverse decisions by United States Department of
Agriculture (USDA) agency officials to NAD. The deadline for receipt of
comments was June 21, 1995. On June 28, 1995 (60 FR 32922) the Office
of the Secretary published an extension of the deadline for receipt of
comments until July 6, 1995. From the period May 22 to July 6, 1995,
forty-six timely public comments were received in response to the
proposed rulemaking. Based on these comments, including concerns
regarding the need for an additional comment period on the proposed
rules and the need for a comment period on USDA agency conforming
rules, but mindful of the immediate need for published rules, the
Secretary now issues these rules on an interim final basis. These rules
also include conforming changes to the former appeal rules of USDA
agencies whose adverse decisions are now subject to NAD review.
DATES: Part 11 of this interim rule is effective January 16, 1996. With
the exception of Sec. 11.9, part 11 of this rule is applicable as to
agency adverse decisions and NAD appeals for which hearings have not
been held. Section 11.9 of this interim rule is applicable immediately
as to all pending requests for Director review and is applicable
retroactively to all requests for Director
[[Page 67299]]
review made on or after October 20, 1994.
Amendments made by this interim rule to all other parts of title 7
of the Code of Federal Regulations are effective January 16, 1996 and
are applicable on January 16, 1996 as to any adverse technical
determinations or decisions made by an applicable agency.
Written comments via letter, facsimile, or Internet are invited
from interested individuals and organizations, and must be received on
or before March 28, 1996.
ADDRESSES: Comments should be sent to L. Benjamin Young, Jr., Office of
the General Counsel, Research and Operations Division, AgBox 1415,
United States Department of Agriculture, Washington, DC 20250-1415; fax
number: 202/720-5837; Internet: [email protected].
FOR FURTHER INFORMATION CONTACT: L. Benjamin Young, Jr. at the above
address or 202/720-4076.
SUPPLEMENTARY INFORMATION:
Classification
This rule has been reviewed under E.O. 12866, and it has been
determined that it is not a ``significant regulatory action'' rule
because it will not have an annual effect on the economy of $100
million or more or adversely and materially affect a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. This rule will not create any serious inconsistencies or
otherwise interfere with actions taken or planned by another agency. It
will not materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof, and does not raise novel legal or policy issues
arising out of legal mandates, the President's priorities, or
principles set forth in E.O. 12866.
Regulatory Flexibility Act
USDA certifies that this rule will not have a significant impact on
a substantial number of small entities as defined in the Regulatory
Flexibility Act, Pub. L. 96-534, as amended (5 U.S.C. 601 et seq.).
Paperwork Reduction Act
USDA has determined that the provisions of the Paperwork Reduction
Act, as amended, 44 U.S.C., chapter 35, do not apply to any collections
of information contained in this rule because any such collections of
information are made during the conduct of administrative action taken
by an agency against specific individuals or entities. 5 CFR
1320.4(a)(2).
Background and Purpose
On December 27, 1994 (see 59 FR 66,517), the Secretary of
Agriculture noticed that the NAD was established pursuant to Title II,
Subtitle H of the Federal Crop Insurance Reform and Department of
Agriculture Reorganization Act of 1994, Public Law No. 103-354, 7
U.S.C. 6991 et seq. (``the Act''). NAD was assigned responsibility for
all administrative appeals formerly handled by the National Appeals
Division of the former Agricultural Stabilization and Conservation
Service (ASCS) and by the National Appeals Staff of the former Farmers
Home Administration (FmHA), appeals arising from decisions of the
former Rural Development Administration (RDA) and the former Soil
Conservation Service (SCS), appeals arising from decisions of the
successor agencies to the foregoing agencies established by the
Secretary, appeals arising from decisions of the Commodity Credit
Corporation (CCC) and the Federal Crop Insurance Corporation (FCIC),
and such other administrative appeals arising from decisions of
agencies and offices of USDA as may in the future be assigned by the
Secretary.
This rule sets forth the jurisdiction of the NAD, and the
procedures appellants and agencies must follow upon appeal of adverse
decisions by covered USDA program ``participants'' as defined in detail
in the new 7 CFR part 11. In addition, since the Act changes existing
formal administrative appeals procedures for some agencies while
allowing participants a choice of pursuing informal appeals with an
agency first or appealing directly to NAD, this rule also makes
conforming amendments to the existing appeal procedures of the USDA
agencies whose adverse decisions will be appealable to NAD under the
new 7 CFR part 11.
For the purposes of convenience, this preamble and the changes to
USDA regulations are divided as follows:
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Item Subject Contact
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I.................. Authentication of Records.............. B. Young 202/720-4076.
II................. NAD Rules of Procedure................. B. Young 202/720-4076.
III................ Natural Resources Conservation Service S. Penn 202/720-6521.
(NRCS) Appeal Rules.
IV................. Commodity Credit Corporation (CCC), A. Grundeman 202/720-4591.
Federal Crop Insurance Corporation
(FCIC), and Farm Service Agency (FSA)
Appeal Rules.
V.................. Rural Business-Cooperative Service A. Grundeman 202/720-4591.
(RBS), Rural Housing Service (RHS),
and Rural Utilities Service (RUS)
Appeal Rules.
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I. Authentication of Records
This rule amends the provisions of USDA regulations regarding
authentication of official records to provide that the Director of NAD
may authenticate documents in NAD records for USDA.
II. NAD Rules of Procedure
Forty-six timely comments were received by July 6, 1995 in response
to the requests for comment on the proposed NAD rule. In response to
these comments, a number of changes have been made to the rules;
however, USDA has opted not to publish the revised rules for an
additional comment period. USDA does recognize the need for further
public comment on these rules. USDA therefore is issuing this rule on
an interim final basis for three specific reasons.
First, a tension exists between the desire of Congress and the USDA
to make this a farmer-friendly appeals process and the necessity of
establishing an appeals procedure that comports with due process and
results in determinations that will withstand scrutiny in the Federal
courts. At the same time, it is important that the appeals procedure
allow for ease of administration by NAD in a time of scarce and
decreasing Federal resources. These problems are reflected in
disagreements among the commenters as to how some of the most detailed
procedures should be implemented. These tensions should not be resolved
presumptively in a final rule. Therefore, promulgation of an interim
rule will allow USDA to receive more feedback
[[Page 67300]]
and make adjustments with the aid of experience.
Second, several commenters expressed concern over the fact that
conforming amendments to individual agency appeal rules were not
published with the proposed rule. Additionally, these conforming
amendments will result in more substantive changes to agency rules than
originally were anticipated by USDA at the time the proposed rules were
published. For example, FSA now has decided to combine appeal
procedures for the former ASCS, the former FmHA, and FCIC programs that
it now administers under the Act. These new agency appeal procedures
will set forth how participants may use the ``informal hearings''
option provided in section 275 of the Act.
Third, legislative changes may occur during consideration of the
Farm Bill in 1996 that will necessitate changes to the NAD rules of
procedure. By publishing this as an interim rule, the USDA establishes
a process for current operations while leaving the rulemaking door open
for timely adoption of rules necessary to implement possible
legislative changes.
The following explanation is given for those sections of the
proposed rule that were heavily commented on or appeared to be
misunderstood:
Sec. 11.1 Definitions.
Adverse decision. Two commenters noted problems with the proposed
definition of ``adverse decision'' with respect to such decisions
resulting from a failure of the agency to act. The proposed rule had by
definition provided that an adverse decision results when an agency
failed to act or make a decision within timeframes prescribed by agency
program regulations. The two commenters noted that in some cases
statutes prescribed timeframes and that in others the regulations
prescribed no timeframes. In the latter case, one of the commenters
suggested that USDA use a ``reasonable'' time in the absence of a
prescribed timeframe. The amended definition provides that an adverse
decision results when an agency fails to act within prescribed
statutory or regulatory timeframes, or, in the case where there are no
such timeframes specified, within a reasonable time.
Agency. All former and current agencies of the USDA whose adverse
decisions are covered by this part have been added in response to a
comment noting the lack of parallel treatment between inclusion of old
and new agency names and the need to assist individuals unfamiliar with
the new names.
USDA also has added language to cover certain programs administered
by RUS because, as one commenter correctly noted, they are former
programs of RDA that by definition in the Act are covered by NAD. This
is accomplished by excluding from NAD purview all RUS programs
authorized under the Rural Electrification Act and the Rural Telephone
Bank Act.
Agency record, case record, and hearing record. Seven commenters
had questions regarding the definitions of ``agency record,'' ``case
record,'' and ``hearing record.'' These definitions were carefully
nested within one another in order to construe the language of the Act
in a logical manner.
Section 278(c) of the Act requires that NAD determinations be made
``based on information from the case record, laws applicable to the
matter at issue, and applicable regulations published in the Federal
Register.'' Section 277(a) of the Act, however, also makes reference to
the fact that the Director and the Hearing Officer are to have access
to the ``case record'' of an adverse decision upon initial filing of an
appeal. Section 278(b) also makes reference to the ``case record'' that
the Director must review as well as the record from the hearing.
Clearly, the ``case record'' in the latter two provisions cannot be the
same ``case record'' referred to in section 278(c), or else NAD
determinations would have to be made without reference to the record
developed in the hearing itself.
USDA faced the task of construing these seemingly contradictory
statutory provisions in a complementary manner. This was done by
creating a definitional framework based upon section 271(4) of the Act
that defines ``case record'' to include ``all the materials maintained
by the Secretary related to an adverse decision.'' As in most cases
where the Secretary is named in a statute, ``Secretary'' here is
interpreted to mean not the person of the Secretary but rather the
Secretary and all subordinate officials of USDA to whom the Secretary
has delegated statutory authority. Construed in this manner, ``case
record'' includes any and all materials held by USDA that relate to an
adverse decision at any given moment during the administrative appeal
process. What the term ``case record'' includes when used in the
statute thus changes based upon the level of the appeal process in
which it is used.
For purposes of clarity in the rule, a new term needed to be
created to distinguish the ``case record'' presented by the agency to
the Hearing Officer, the record developed by the Hearing Officer in the
hearing (sec. 278(b)) and eventually forwarded to the Director, and the
``case record'' upon which the determination is based. This is
accomplished in the rule by defining documents furnished by the agency
to the Hearing Officer upon the initial filing of the appeal as the
``agency record'' that by rule is deemed admitted as evidence in the
hearing, by defining evidence presented at the hearing, the transcript
of the hearing itself, and post-hearing submissions as the ``hearing
record,'' and finally by explicitly incorporating both the ``agency
record'' and the ``hearing record'' into the definition of ``case
record'' upon which NAD determinations are made. ``Case record''
construed in this fashion also includes ``the request for review, and
such other arguments or information as may be accepted by the
Director'' (sec. 278(b)) in the Director review phase of NAD appeals
because they would be included as materials maintained by the
Secretary.
Director. Three commenters objected to the proposed rule definition
and other provisions that would allow the Director to delegate the
authority of the Director to subordinate individuals within NAD. The
primary rationale for the objections was that this would mean that
someone without the credentials and qualifications required by the
statute for the Director would be exercising the statutory authority of
the Director.
USDA rejected changing this provision for two reasons. First, even
though the authority for certain actions may be delegated, such actions
are still taken in the name of the Director. The Director, in other
words, still exercises the final authority. Second, given the
anticipated volume of appeals to be filed with NAD, it is not practical
or efficient to require that the Director personally perform all
actions specified for the Director by name in the Act.
Division. One commenter suggested that the proposed rule was in
error in specifying that the Division was established by this part
instead of the Act itself. Section 272(a) of the Act provides that
``[t]he Secretary shall establish'' NAD, not that the NAD ``is
established.'' Therefore, action by the Secretary was required to
establish NAD.
Equitable relief. Two commenters suggested that the proposed rule
definition of equitable relief needed to be better defined. USDA chose
not to define equitable relief further because the meaning of such
relief varies from program to program covered under these rules,
depending on the language of the program statutes. The guiding intent
[[Page 67301]]
behind the drafting of these rules was to ensure that they were written
as broadly and flexibly as possible so that they do not need to be
amended each time an agency amends its substantive program regulations.
Ex parte communication. One commenter suggested this definition
needed to include post-hearing requests for Director review and
requests regarding the appealability of adverse decisions. The
definition here was changed to include an oral or written communication
``to any officer or employee of the Division.'' As explained below,
further changes were made regarding ex parte communications to ensure
that the prohibition on such communications covered all NAD proceedings
and employees.
Implement. Three comments were received suggesting changes to this
definition. In combination with Sec. 11.11 of the rule, USDA feels that
this language reflects the statutory definition and need not be
changed.
Participant. One commenter suggested that, rather than defining
``participant'' by listing programs and statutes under which an
individual may not bring an appeal before NAD, a separate list of non-
appealable decisions should be added to the regulation. This approach
was considered, as was listing the programs from which adverse
decisions could be appealed to NAD, but the statutory language did not
support these approaches. ``Adverse decision'' is defined too broadly
in the statute to limit by regulation. Further, nonappealability of
decisions is limited only to matters of general applicability under
section 272(d) of the Act. Conversely, Congress explicitly gave the
Secretary authority to define ``participant'' (sec. 271(9)) and
therefore the approach reflected in the rule was chosen.
Seven substantive comments were made regarding the definition of
``participant'' in the proposed rule. Two commenters suggested that the
definition should be expanded to include the requirement that, for
certain guaranteed loan programs of the former Farmers Home
Administration (FmHA), both the applicant/borrower and the lender
should be required to appeal jointly. Since any decision to deny a
guaranteed loan would affect both the applicant/borrower and the
lender, USDA agrees that both parties must appeal any such adverse
decision and the rule has been revised to reflect this requirement.
However, only the lender will be able to appeal the denial or reduction
of a final loss payment to that lender.
One commenter expressed concern that the language ``right to
participate in'' did not clearly include an applicant. Therefore, USDA
has added ``who has applied for'' to the definition.
One commenter suggested that the wording of the definition
technically could exclude someone from appealing to NAD if, for
example, they had filed a tort claim against USDA. As a ``participant''
in a tort claim, they would not be included as a ``participant'' for
purposes of a NAD appeal. To clarify that this is not the case, USDA
has amended the introductory phrase before the list of programs to
read: ``The term does not include persons whose claim(s) arise
under:''.
Finally, three comments were received from representatives of
reinsured companies, that is, crop insurance companies whose insurance
contracts with producers are reinsured by the FCIC. The reinsured
companies objected to the language including participants affected by
decisions of reinsured companies in the definition of ``participants.''
As originally proposed, the language would have allowed participants to
appeal reinsured company decisions to NAD.
The reinsured companies objected to this language on several
grounds. First, they noted that while FCIC was included in the
definition of ``agency'' in section 271(1) of the Act, reinsured
companies were not. Thus, the proposed rule attempted to include
private companies as government agencies contrary to the language of
the Act. Second, the reinsured companies argued that promulgation of
this language by USDA in the final rule would breach the terms of the
Standard Reinsurance Agreements between USDA and the reinsured
companies, as well as alter the legal terms of reinsured company
policies with thousands of insureds. Third, the number of policy
decisions made by reinsured companies that would be open to appeal to
NAD under the proposed language would overwhelm NAD with thousands of
appeals. Finally, the reinsured companies argued that the intent of the
Act in including FCIC in the definition of ``agency'' was to provide
appeal rights for participants in crop insurance programs for a narrow
range of decisions still committed to FCIC after crop insurance reform,
i.e., decisions regarding yield and coverage that are based on FCIC
actuarial data or decisions where an individual is found ineligible to
participate in the Federal crop insurance program.
In response to these comments, USDA has dropped decisions of
reinsured companies as decisions that participants may appeal under
this part. The exclusion of disputes between reinsured companies and
FCIC from the definition of participant in the final rule also means
that all disputes between reinsured companies and FCIC likewise are
excluded from the jurisdiction of NAD. Contract disputes between
reinsured companies and FCIC will be appealable to the USDA Board of
Contract Appeals as provided in its rules. Non-contract related
decisions of FCIC that are adverse to reinsured companies may be
settled with the agency or by resort to legal action in a court of
competent jurisdiction.
Additional definitions. Two commenters suggested that a definition
for ``mediation'' be added. The use of mediation or other forms of
alternative dispute resolution (ADR) by program participants is a
matter of choice for the participants themselves. Since the type of
mediation or ADR used by a participant and the agency is not a
jurisdictional issue for purposes of determining whether an appeal is
properly before NAD, NAD has no control over whatever means the
participant and agency employ. Accordingly, USDA has declined to
attempt to define mediation or ADR for purposes of this part.
Sec. 11.2 General statement.
No comments were received in response to this section. USDA has
made two changes to this section upon further review. First, language
has been added to reflect the statutory provision that NAD, although
independent, is subject to the general supervision and policy direction
of the Secretary. Second, a statement has been added to make clear that
exhaustion of the procedures for Hearing Officer review of an adverse
decision under this part is required before a program participant may
seek judicial review of an adverse decision. This additional language
does not deprive participants of their right to seek review under any
judicial exceptions to required exhaustion of administrative
procedures.
Sec. 11.3 Applicability.
Six commenters generally contended that the NAD appeal procedures
should apply to appeals arising after October 13, 1994, and not October
20, 1994 as specified in the proposed rule. The commenters' rationale
for the October 13 date is that the Act was effective as of that date.
One commenter also discussed the legal ability of the Department to
make the rule effective retroactively.
USDA has decided to delete the effective date subsection from this
[[Page 67302]]
section because it inaccurately indicated an intent to make this entire
rule retroactive. Instead, the effective date of this rule is
appropriately set forth in the EFFECTIVE DATE section of this Federal
Register document.
Two additional changes have been made to this section. First,
wetland or highly erodible land determinations have been added to the
list of examples of agency adverse decisions to clarify that these
decisions are included.
Second, a new subsection has been added to address confusion,
reflected in some comments, that exists over the jurisdiction of NAD
over agency programs. NAD Hearing Officers are not administrative law
judges. NAD has no jurisdiction over questions of law or the
appropriateness of agency regulations. It simply decides the factual
matter of whether an agency complied with such laws and regulations in
rendering an adverse decision. The limitation added here makes clear
that NAD may not be used by program participants for the purpose of
challenging the validity of USDA regulations issued pursuant to
statutory authority.
Sec. 11.4 Inapplicability of other laws and regulations.
Section 277 of the Act provides an elaborate appeals scheme for
particular programs of USDA, including provisions for hearings, the
issuance of subpoenas, and even ex parte communications. Section
277(a)(2)(A) of the Act in fact explicitly incorporates the definition
of an ex parte communication from the Administrative Procedure Act
(APA) (5 U.S.C. 551(14)) as if the APA stands outside of, and is not
applicable to, NAD proceedings. In view of this statutory language, and
in the absence of Congressional intent otherwise, USDA has concluded
that the provisions of the APA generally applicable to agency
adjudications (5 U.S.C. 554, 555, 556, 557, & 3105) do not apply to NAD
proceedings. Furthermore, because NAD proceedings are not required to
be conducted under 5 U.S.C. 554, USDA also concludes the Equal Access
to Justice Act, 5 U.S.C. 504, does not apply to NAD proceedings.
Ardestani v. I.N.S., 112 S.Ct. 515, 519 (1991).
Another issue is the applicability of the Federal Rules of Evidence
to NAD proceedings. Congress intended that these proceedings be farmer-
friendly so that farmers would not be required to hire attorneys to use
the NAD appeal process. Therefore, USDA concluded that the Federal
Rules of Evidence should not apply to NAD proceedings.
One commenter suggested USDA also should eliminate any ambiguity
with respect to the applicability of the Federal Rules of Civil
Procedure, which was referred to in one respect in what was
Sec. 11.7(a)(2)(vi) of the proposed rule. The situation with respect to
the Rules of Evidence, however, is unique in that attempts have been
made in NAD hearings to apply the Federal Rules of Evidence as
generally accepted rules of evidence, necessitating an explicit
statement of policy in the rules. The same problems have not arisen
with respect to the Federal Rules of Civil Procedure; therefore, USDA
does not feel that it is necessary to state explicitly that those rules
do not apply.
Sec. 11.5 Informal agency hearings and exhaustion.
This section of the proposed rule drew 29 comments, more than any
other. Some comments suggested that the exhaustion requirement for FSA
county committees was contrary to statute, while others were concerned
because the section did not provide for exhaustion to the FSA state
committee. A number of commenters were confused by the sequence of
events for informal hearings, mediation, and NAD appeals outlined in
this section. Providers of mediation services particularly were
concerned that all appellants be notified of mediation rights, and that
mediation occur at the lowest level of the appeal process. A number of
commenters expressed concern about the inconsistent use of the terms
``informal hearings,'' ``informal appeal,'' and ``informal review.''
With respect to the comments regarding agency notice of adverse
decisions and appeal rights, USDA has determined to handle such notice
outside the parameters of this rule. As a matter of Department policy,
agencies will be expected to notify participants of their appeal rights
and their right to choose mediation or ADR, where available, when they
issue an adverse decision.
In light of the other comments, this section has been revised
significantly. Only the term ``informal review'' will be used
throughout the section. Given this consistent use, USDA finds it
unnecessary to define this term.
Before appealing to NAD, participants may elect to request an
informal review of an adverse decision by the agency. However, in the
case of adverse decisions made by officials under the authority of FSA
county and area committees, participants will be required to undergo
informal review before the county or area committee before appealing
the adverse decision to NAD. After receiving the mandatory informal
review by the county or area committee, the participant then may seek
informal review of that decision by the State committee or appeal
directly to NAD. For purposes of this section, USDA interprets a
decision at each level of agency informal review as a new adverse
decision for purposes of calculating the timeliness of a participant's
appeal to NAD under Sec. 11.6 of the rules.
When a participant requests such mediation, the 30-day period
within which the participant may request a hearing under
Sec. 11.6(b)(1) will stop running until such time as the mediation or
ADR is concluded. Unlike with informal review, however, the conclusion
of mediation is not viewed as a new agency adverse decision. At that
point, the participant will have the balance of the 30-day period to
appeal to NAD, or to seek informal review as outlined above. The 30-day
period will function in effect as a statute of limitations; it will be
up to the agency, not NAD, to raise the jurisdictional issue before NAD
as to the fact that a participant's appeal is untimely.
Treatment of mediation or ADR in this manner means that the
conclusion of mediation or ADR will not be treated as an adverse
decision. Conversely, as indicated above, a decision at each level of
the informal review process will be treated as an adverse decision for
determining when the 30-day period for an appeal to NAD begins to run.
Example
A FSA program participant receives an adverse decision from a
county executive director. He cannot appeal to NAD. He must first
pursue an informal review with the county committee. The county
committee upholds the original adverse decision. Program participant
now has three choices: (1) Within 30 days, choose mediation or ADR;
(2) Within 30 days, appeal to NAD; or (3) Within the lesser of 30
days, or the time period specified in FSA informal review
regulations, request an informal review by the State Committee.
Participant chooses mediation after 10 days. Mediation fails.
Participant has the balance of 20 days (i.e., 30 days minus 10 days)
to appeal to NAD after the conclusion of mediation or he may request
review by the State Committee in accordance with FSA regulations. If
he appeals to NAD, the agency bears the burden of proving
untimeliness of the appeal to NAD, i.e., if the participant took 25
days, 5 days in excess of his remaining 20, to appeal to NAD, the
agency must demonstrate this to NAD. If he requests an informal
review by the State Committee, the participant will have 30 days to
appeal any adverse decision made by the State Committee to NAD.
[[Page 67303]]
Sec. 11.6 Director review of agency determination of appealability and
right of participants to Division hearing.
USDA has revised the format of this section so that it follows the
logical progression from a Director determination of appealability,
where made necessary because of an agency determination that an adverse
decision is not appealable, to the appeal itself.
Section 11.6(a) (Sec. 11.6(b) in the proposed rule) provides the
rules for requesting Director review of the determination of
appealability. Two commenters suggested that the proposed language that
the Director use ``any information he determines necessary'' in making
a determination was too broad. These commenters felt the information to
be considered should be defined, and that the allowance of any
information the Director deemed necessary made the process appear
secretive if the ex parte prohibition did not apply to this stage of
the appeal process.
USDA has revised this subsection to reflect the language of the
statute and not specify anything regarding what information the
Director may or may not use.
Two commenters desired changes in the references to Deputy and
Associate Directors to reflect titles currently used in the NAD
internal structure. USDA has substituted ``subordinate official other
than a Hearing Officer'' in the place of Deputy and Associate Directors
to preserve the flexibility of the Director to organize NAD internally
without reference to regulatorily defined titles. This change also
responds to a comment that requests that the Director be allowed to
delegate this responsibility as far down as possible to accomplish such
a mission efficiently. Hearing Officers were excluded from such
delegation because the delegation of such authority down to Hearing
Officers facially contradicted the statute and could represent a
potential conflict of interest for Hearing Officers who must justify
resource requirements based on the burden of their caseload.
USDA rejected comments suggesting that this delegation is improper
under the statute, or that participants should be given the right to
challenge the credentials of the subordinate reviewing official.
Nothing in the statute requires that the Director personally must
review every request for a determination of appealability that may be
filed. The Director, as in the case of any agency official, remains
ultimately responsible for any decision undertaken by a subordinate.
Therefore, USDA sees no reason why this statute should be read any
differently than any other statute where, absent a specific statutory
prohibition, USDA and other executive branch agencies have allowed for
delegation of decision-making authority by officials whose
qualifications have been set by statute.
With respect to this subsection as proposed, two commenters also
expressed concern that it did not specify the timing for filing an
appeal once the Director reversed an agency determination that an
adverse decision was not appealable. USDA added language in what is now
subsection (b) to specify that the 30 days for appeal of adverse
decisions shall run from the date the participant receives notice of
the adverse decision or receives notice of the Director's determination
that an adverse decision is appealable.
Subsection (b) (Sec. 11.6(c) in the proposed rule) provides rules
for appealing adverse decisions to NAD. In addition to the change noted
above, two additional changes were made to this section. First, seven
commenters suggested that it is inappropriate in any circumstances to
apply a ``should have known'' standard as a deadline for appeals in
cases of agency inaction. They argued that this shifted the burden from
the agency to the participant for policing the agency's failure to
follow its own regulations; one commenter argued that the agency
remained in continuing violation for failure to act within its own
deadlines.
USDA disagrees with these commenters. A failure to act by the
agency at some point becomes ripe for appeal and the statute clearly
also provides that at a point past 30 days from an adverse decision an
appellant loses the right of appeal. USDA finds no intention on the
part of Congress to extend a participant's right of appeal
indefinitely, particularly when agency regulations define a specified
period in which a decision is to be made. However, to add flexibility
to the ``should have known'' standard in the latter situation, USDA has
changed the regulation to require that a participant must request a
hearing within 30 days after the participant ``reasonably'' should have
known that the agency had not acted within the timeframes specified by
program regulations.
The second change made to the proposed rule regarding the request
for a hearing is to require a participant to send a copy of the request
for a hearing to the agency, and allow a participant the option to send
a copy of the adverse decision being appealed to the agency as well. In
either case, failure of the participant to send such copies to the
agency is not jurisdictional and therefore will not be grounds for
dismissal of an appeal.
Agency officials often make many decisions a year with respect to
some individual participants. In such cases, it is not always
immediately apparent which decision a participant has appealed at a
given time. USDA adds this provision to promote efficiency in the
appeals process by encouraging full airings of appeals before the
Hearing Officer. Sending the agency a copy of the decision will
discourage agency requests for Director review because the agency did
not have adequate notice of the appeal or the decision that was being
appealed.
With respect to the language in the proposed Sec. 11.9(c), several
other comments were rejected. Two commenters suggested that, since the
``should have known'' standard is being used, participants should not
be required to exhaust administrative remedies prior to judicial review
when appeals are taken from cases where agencies have failed to act.
The statement added to Sec. 11.2 and discussed above makes clear that
USDA considers exhaustion of an appeal to the Hearing Officer mandatory
prior to seeking judicial review, regardless of the basis for the
appeal.
One commenter suggested that the regulation should state clearly
that a decision becomes final after the 30-day time period for
requesting a hearing is missed and that this timeframe may not be
waived. USDA believes such a provision unnecessary; if a participant
does not request the hearing within 30 days, the participant will not
be allowed to have a hearing. USDA considers the 30-day requirement for
filing an appeal to be jurisdictional in nature; thus, NAD has no
authority under the Act to hear an appeal unless filed within the 30-
day time period as required.
On the other hand, USDA does not view the requirements of section
274 of the Act to be jurisdictional for NAD. That section requires an
agency to provide participants with written notice of the adverse
decision and appeal rights within 10 working days of the adverse
decision. One commenter suggested that the proposed rule be revised to
state that the 30-day timeframe for requesting a hearing does not begin
to run until the participant receives complete appeal rights,
presumably as provided for in section 274. While section 274 of the Act
places a requirement on agencies, it has no bearing on the authority of
NAD to hear an appeal by a participant. To read section 274 literally
as suggested also would mean conversely that a participant achieves no
standing to
[[Page 67304]]
appeal an adverse decision to NAD until the participant receives a
notice of appeal rights. USDA therefore rejects this comment and
instead determines that the time period for requesting an appeal begins
to run on ``the date on which the participant first received notice of
the adverse decision'' as provided in section 276(b) of the Act.
New subsection (c) retains language from the proposed subsection
(a) regarding the requirement for participants to authorize
representation by others in writing to USDA. Eight commenters addressed
both this specific requirement and the requirement in other parts of
this subsection that a participant must ``personally'' request a
Director determination of appealability and an appeal to a Hearing
Officer.
The intention behind this requirement is to ensure that
participants are fully aware of the implications of actions being taken
on their behalf in the appeals process. By requiring that they
personally sign requests for Director review of appealability, requests
for hearing, and requests for Director review of Hearing Officer
determinations (Sec. 11.9(a)), participants will be taking personal
responsibility for such actions when represented by another. Authorized
representatives also will be required to keep participants informed in
order to get their signature authorizing proceeding to each new phase
of a NAD appeal. USDA's concern is to ensure that participants are
giving informed consent to the decisions undertaken in their behalf by
their representatives, and, by requiring execution of a declaration of
representation, that NAD is assured that purported representatives are
who they actually claim to be. While USDA could curb potential abuses
by licensed attorneys by complaints to state bars, USDA has no check on
the actions of representatives who are not attorneys other than through
provisions such as those promulgated here. The burdens imposed on
participants and representatives are light--the language for the
declaration can be obtained from NAD and signed documents can be
submitted by mail or by facsimile transmission.
Finally, four commenters felt that it was inappropriate for an
appellant to state why the adverse decision is wrong because it was too
early in the process to state a position or it may lead some
participants to think that they need an attorney to bring an appeal.
USDA disagrees. The word ``wrong'' was used here precisely to avoid any
requirement that a participant state why a decision was ``erroneous''
or ``did not conform to published law or regulation'' or similar
language. Those latter variations could be interpreted as legalistic,
but USDA believes that at this initial stage the participant at least
can tell NAD what is wrong with the decision that causes one to appeal
it. This initial position is not binding, but rather provides NAD with
a little bit more information that will allow for efficient
administration of appeals. For example, if a participant feels
discriminated against in the administration of a program, a statement
to this effect at this stage may allow NAD to direct that person to the
appropriate forum of USDA for consideration of civil rights complaints.
Sec. 11.7 Ex parte communications.
The proposed rule included a paragraph on ex parte communications
in Sec. 11.7(a) under the section regarding Division hearings. Two
commenters expressed concerns in response to this proposed paragraph,
the proposed definition of ex parte communication, and the proposed
subsection on Director review of agency determinations of
nonappealability, suggesting that the ex parte prohibition should apply
to more than just the hearing phase of the NAD appeal process. One of
these commenters also noted that the ex parte prohibition also should
apply to all employees of the Division.
Initially, USDA drafted the proposed regulation in parallel to the
statute that stated the ex parte prohibition in the section of the Act
on hearings. After reviewing the comments and the statutory language,
and in order to foster a perception of fairness and equal treatment in
the NAD appeals process, USDA has determined to apply the ex parte
prohibition from the point at which the appeal is filed under section
Sec. 11.6(b) through the issuance of a final determination by the
Director under Sec. 11.9.
To do this, a new Sec. 11.7 was created to make clear that the ex
parte prohibition applies to more than just the hearing phase of the
NAD process, and that it applies to any officer or employee of the
Division. However, USDA rejected the comment that suggested that the ex
parte prohibition apply to requests for Director review of
appealability. The Director should be entitled to greater flexibility
in contacting the agency and the USDA Office of the General Counsel to
obtain information useful in making determinations as to whether
particular adverse decisions are matters of general applicability.
Additionally, the ex parte prohibition does not apply to Director
reconsideration under Sec. 11.11 unless the Director decides to grant
the request for reconsideration.
Sec. 11.8 Division hearings.
Proposed Sec. 11.7 has been renumbered Sec. 11.8. The majority of
comments on this section involved the perceived onerous burden on
appellants of virtually requiring verbatim transcripts of hearings, the
allegedly unreasonable time deadlines that could be set more flexibly
by the Hearing Officer, the requirements for sending various notices to
the appellant, the need for allowing good cause exceptions for
absences, the need for actual documents to be submitted to Hearing
Officers to make the hearing more efficient, the need to stress
telephone hearings, the wisdom of continuing current NAD practice of
telephonic pre-hearing conferences, the need to give additional parties
the right to participate in the appeal, the need to reduce or waive the
perceived unreasonable requirement that the requesting party pay for
costs of witness travel and subsistence fees, and the ambiguity of the
use of the word ``personally.''
A number of changes have been made in response to comments and upon
further reflection by USDA. The changes, or rejection of comments, are
described below:
--Proposed Sec. 11.7(a)(1) (now Sec. 11.8(a)(1)) is revised to require
the agency to provide the appellant a copy of the agency record upon
request of the appellant; this requirement is a restatement of that
requirement already included in the proposed rule at Sec. 11.7(b)(1)
that also has been amended as Sec. 11.8(b)(1) in the final rule to
require that such record be furnished to the appellant within 10 days
of agency receipt of request for the record rather than ``promptly'' as
proposed;
--A Hearing Officer will be required to obtain the concurrence of the
Director prior to issuing a subpoena;
--Comments suggesting that an appellant have access to his or her
entire file under this part were rejected, but the definition of
``agency record'' was expanded above;
--The requirement that a request for subpoena be submitted 14 days
ahead of the hearing was retained but a requirement that such a
subpoena must be issued 7 days prior to the hearing was added;
--Parties requesting a subpoena will have to pay only the
``reasonable'' travel and subsistence costs of a witness; USDA rejected
all comments suggesting that the requirement that a party pay for all
witnesses subpoenaed be deleted or that USDA should pay for such
witnesses where the appellant was unable to pay;
[[Page 67305]]
USDA also limited its payment for the costs associated with the
appearance of a USDA employee to such situations where an employee's
role as a witness arises out of his or her performance of official
duties;
--The requirement for submission of certain documents to the Hearing
Officer 28 days prior to the hearing is deleted; instead, the Hearing
Officer may set a ``reasonable'' deadline for submission of such
documents;
--The required pre-hearing submission of documents is limited to those
documents not contained in the agency record that the appellant plans
on introducing at the hearing;
--The amount of time for the Hearing Officer's notice of the date,
time, and place of the hearing is reduced from 21 days to 14 days prior
to the hearing, and the Hearing Officer also may take into account the
convenience of the agency in picking a hearing site;
--A pre-hearing conference will be required and will be conducted by
telephone unless otherwise agreed to by all parties and the Hearing
Officer;
--The notice of the right to obtain the official record shall go to all
parties, and all parties shall have the same participation rights in
the actual hearing;
--The text of the proposed paragraph Sec. 11.7(c)(4)(iii) is deleted
and replaced with new text in Sec. 11.8(c)(5)(iii) that makes a tape
recording by the Division the official record of the proceeding unless
a party requests a verbatim transcript, in which case that party must
furnish a certified copy of the transcript to the Hearing Officer for
the purpose of constituting the official record and must allow other
parties to purchase that transcript from the transcription service;
--The authority of the Hearing Officer to cancel a hearing in the
absence of a party is limited to such cases where the absent party
fails to appear without good cause;
--The ability of the Hearing Officer to add additional evidence to the
record in the absence of a party at a hearing is clarified;
--The section clarifies that a notice of determination must be sent by
the Hearing Officer to the individual participant appealing the adverse
decision, i.e. the ``named'' appellant, as well as the authorized
representative of that person; and
--The Hearing Officer shall send, with the notice of determination, a
copy of the procedures for a request for filing for Director review
under Sec. 11.9.
Sec. 11.9 Director review of determinations of Hearing Officers.
Fifteen commenters submitted comments on this section, which
appeared as Sec. 11.8 in the proposed rule. Some of these comments,
such as those objecting to the use of the word ``personally,'' the
request for the procedures of this section to be sent to the appellant
with the Hearing Officer notice of determination, and the extension of
the ex parte prohibition to Director review, have been handled as
described above.
One comment suggesting that the agency head be allowed to delegate
his or her authority to request Director review was rejected. On this
point, USDA's position is that an agency request for Director review
should only be exercised where the Hearing Officer has issued a
determination that clearly is not supported by a preponderance of the
evidence or is contrary to law. To avoid flooding NAD with agency
requests for review, retaining the agency head, or the person acting in
such capacity, as the only person allowed to request review assures
that only the most meritorious and serious NAD decisions will be
forwarded by an agency for Director review.
A number of comments concerned the perceptions that all parties are
not able to respond to requests for Director review, that the Director
is not addressing all arguments in the rush to meet the statutory
deadlines for issuing determinations, and that no provision is made for
how new evidence introduced at this stage is to be handled. In response
to these concerns, a number of changes were made.
First, a request for Director review shall include specific reasons
why the appellant believes the Hearing Officer's determination is
wrong. Given the limited time period for agency response and the
limited time period for Director review, the appellant should be
required to do something more than simply submit a copy of the Hearing
Officer's determination with a note saying that they appeal. As
explained above, the term ``wrong'' is used specifically to avoid
legalistic connotations. USDA simply asks that appellants express in
their own terms what they find wrong with determinations. However,
agencies here are held to a higher standard in order to assure
efficient use of NAD resources. Agencies in their requests must state
specific reasons why the determination of the Hearing Officer is
erroneous, including citation of statutes or regulations that the
agency believes the determination violates.
Second, USDA has added language requiring that a party seeking
Director review of the Hearing Officer's determination submit a copy of
the request for review simultaneously to all other parties to the
appeal. A new subsection also provides those non-submitting parties 5
days from receipt of the request for Director review to submit written
responses to the request. Added language makes clear that the Director
may consider such responses in reaching a determination. However, if
new evidence is submitted in such a request, new language authorizes
the Director to remand all or a portion of the determination to the
Hearing Officer for consideration of that new evidence. USDA rejected
the comment that such a remanded determination should go back to a new
Hearing Officer. The Hearing Officer making the original determination
has the best knowledge of the case to make an efficient consideration
of new evidence in the absence of some credible evidence of personal
bias.
Third, the deadlines set by the Act for the Director to issue a
final determination or to remand to the Hearing Officer may be
unrealistic at any given time because of caseload or the complexities
of a particular appeal. Although USDA believes the failure to meet
these deadlines does not deprive the Director of jurisdiction to reach
a determination or issue a remand order, it fully intends to follow
such deadlines to the extent possible in order to deliver fairly
considered determinations of the Director that will withstand judicial
review. Hastily rendered determinations that fail to develop an
adequate decision for judicial review do not benefit either USDA or
appellants. Therefore, while USDA has added no provision affirmatively
authorizing the Director to extend the period for issuance of
determinations, USDA recognizes that it may be necessary for the
Director to do so in individual cases in order to facilitate a fair and
equitable resolution of the appeal. Equitable, in this sense, refers to
equal participation in and consideration of parties' submissions in the
Director review process.
Finally, the Director will review the determination of the Hearing
Officer to determine whether the Hearing Officer's determination is
supported by substantial evidence. If any additional information
submitted in the Director review process is used as a basis for the
Director's final determination, the Director shall note the reasons for
use of such new information in the final determination.
With respect to this section, one commenter also suggested that if
a Hearing Officer does not have the power to reverse a denial of
equitable relief (in
[[Page 67306]]
effect, to award equitable relief) then this part should provide a
shortcut past the Hearing Officer to the Director. The position of USDA
is that the statute provides the Director with authority in appropriate
cases to award equitable relief, and that no different procedural steps
are required to implement that authority. However, a record developed
by a Hearing Officer is necessary for the Director to determine whether
such relief is appropriate.
Sec. 11.10 Basis for determinations.
One commenter cited this section (proposed Sec. 11.9) as the
appropriate place for stating that NAD is bound by prior findings of
fact by an agency or NAD with respect to a particular appellant in
another matter. While it is not the intention of USDA to implement NAD
as part of a formal legal system based on large bodies of caselaw, USDA
agrees that a Hearing Officer should not issue a contrary factual
determination regarding the same appellant in a different matter where
that factual determination was directly addressed in the other matter.
Two commenters suggested in essence that the basis of
determinations should be limited to issues raised by the decision of
the agency and that the Hearing Officer or Director may not decide
adversely to the appellant on issues not decided adversely to the
appellant by the agency. USDA finds nothing in the statute to support
anything other than a de novo review of agency decisions by NAD. The
parties or NAD may raise any new issue as long as it conforms to the
facts and law and regulations.
Four commenters expressed concern that the language ``generally
applicable interpretations'' in what is now Sec. 11.10(b) of the rule
would make agency handbooks, manuals, and directives binding in a way
that permits wholesale violations of the Act. These commenters point to
section 278(c) of the Act that the commenters assert was enacted
specifically to prevent agencies from using such materials by reference
only to statutes and ``regulations published in the Federal Register''
as the basis for NAD determinations.
USDA uses this language here to make clear again that NAD is not a
forum for appellants to challenge agency statutes, regulations, or the
generally applicable interpretations of those statutes and regulations.
Some generally applicable interpretations actually may have been
published once as a notice in the Federal Register, others may be based
on caselaw interpreting a particular program provision in a particular
Federal court jurisdiction or state court jurisdiction for programs in
which state law is the applicable law. Still other generally applicable
statements may be based on the previous advice of the Office of the
General Counsel regarding a statute or regulation that constitutes the
official legal position of USDA. In any of these described cases, for
example, NAD could not ignore the generally applicable statements and
base its determinations on legal interpretations that it is not
authorized by the Act to make.
Sec. 11.11 Reconsideration of Hearing Officer or Director
determinations.
Upon further review, USDA has determined that the Director has
limited inherent authority to reconsider final determinations of the
Director even though provisions for such authority have not been
specifically stated in the Act. Therefore, this new section sets forth
standards for reconsideration of a Director's final determination.
Sec. 11.12 Effective date and implementation of final determinations
of the Division.
Several commenters suggested that this section needed more
clarification as to the applicable dates, or, alternatively, that the
Hearing Officer or Director should state what those dates are in the
final determination. USDA finds further amendment of this section
unnecessary at this time, given the variety of programs appealable to
NAD and the responsibility of agencies for implementation of NAD and
program decisions.
It is the position of USDA with respect to implementation, however,
that: (1) Implementation of a NAD decision only requires an agency to
move to the next step of agency consideration of a benefit or
application; (2) in keeping with the language of the Act, the
applicable date of the decision is the date of the decision of the body
from which the NAD appeal is brought; and (3) agencies, in accord with
their regulations, may consider changes in the condition of the
participant in the implementation of any NAD final determination.
Sec. 11.13 Judicial review.
Two commenters suggested that appeals arising from an agency's
failure to act should be excluded from this exhaustion requirement.
USDA finds no support in the Act for such an exception. One commenter
also suggested an amendment to include judicially recognized exceptions
to the administrative exhaustion requirement. Since those exceptions
are part of common law, and are thus changeable and subject to
conflicting judicial interpretation, USDA finds inappropriate the
addition of such exceptions to the regulation.
Sec. 11.14 Filing of appeals and computation of time.
Two commenters expressed concerns that individuals residing in
different time zones would have less time to appeal if Eastern time was
used as a defining time for submission of filings required by this
rule. In response, USDA has changed the deadline to 5:00 p.m. local
time at the office of the Division to which the filing is submitted.
Common practice now is for NAD or the agency, in its notice of appeal
rights, to specify regional NAD offices where documents are to be
submitted. USDA's change in this provision is acknowledgement of that
practice and permits flexibility. However, USDA does not think that
this permits participants on the East Coast to evade the purposes of
this rule by filing documents with West Coast NAD offices in order to
meet the 5:00 p.m. deadline.
III. Natural Resources Conservation Service (NRCS) Appeal Rules
This portion of the interim-final rule sets forth the regulations
for the handling of program participant requests for mediation or
informal hearings of adverse technical determinations and decisions
made by NRCS officials. Specifically, this rule amends part 614 to
implement section 275 of the Act which requires NRCS to afford
participants the opportunity for an informal hearing or mediation
(where available), when requested, before they file an appeal of
adverse decisions with NAD.
These procedures are applicable to requests for mediation or
informal hearings within the following program areas:
(1) Highly erodible land conservation.
(2) Wetland Conservation.
(3) Wetland Technical determinations, including wetland technical
determinations made by NRCS officials not related to a request for USDA
program benefits.
(4) Conservation Reserve Program.
(5) Wetlands Reserve Program.
(6) Great Plains Conservation Program.
(7) Rural Abandoned Mine Program.
(8) Colorado River Basin Salinity Control Program.
(9) Resource Conservation and Development Program.
(10) Emergency Wetland Reserve Program.
(11) Agricultural Water Quality Incentives Program.
(12) Environmental Easement Program.
[[Page 67307]]
(13) Forestry Incentives Program.
(14) Water Bank Program.
(15) Long term cost-sharing agreements under Public Law 83-566 and
Public Law 78-534 watershed projects.
(16) Any other program which subsequently incorporates these
procedures through reference to this part within its program
regulations.
Part 614 as revised establishes two major categories of decisions
made by NRCS officials for which landowners and participants may seek
reconsideration or appeal: 1) those technical determinations of NRCS
officials that may be appealed to NAD after appeal to the FSA county or
area committees established under section 8(b)(5) of the Soil
Conservation and Domestic Allotment Act (16 U.S.C 590h(b)(5)); and 2)
other decisions made by NRCS.
The current regulations in 7 CFR part 614 were published as a final
rule on July 24, 1986, pursuant to Title XII of the Food Security Act
of 1985, P.L. 99-198, 16 U.S.C. 3801 et seq. (Title XII). Those
regulations set forth the procedures under which an owner or operator
could seek reconsideration of, or appeal from, certain decisions made
by NRCS officials regarding eligibility for participation in the
Conservation Reserve Program, as authorized by Subtitle D of Title XII,
or regarding the applicability of the compliance requirements of the
highly erodible land and wetland conservation provisions of subtitles B
and C of title XII, respectively.
The Reorganization Act specified that, until such time as an
adverse decision is referred to the NAD for consideration, FSA county
or area committees established under section 8(b)(5) of the Soil
Conservation and Domestic Allotment Act (16 U.S.C 590h(b)(5)) would
have jurisdiction over any appeal resulting from adverse technical
determinations made under Title XII, including an adverse decision
involving technical determinations made by NRCS. Thus the subject
matter of the current part 614 has been incorporated into subpart B of
the revised part 614 which sets forth the informal appeal process for
appeals of title XII technical determinations made by NRCS to FSA
county committees as required by the Reorganization Act.
Subpart C of the revised part 614 consolidates appeal procedures
for all other existing NRCS programs in part 614. Appeals for the
following additional programs are now also covered by part 614: 7 CFR
Part 623, Emergency Wetland Reserve Program; 7 CFR Part 631, Great
Plains Conservation Program; 7 CFR Part 632, Rural Abandoned Mine
Program; 7 CFR Part 634, Rural Clean Water Program; 7 CFR Part 663,
Wellton-Mohawk Irrigation Improvement Program, and 7 CFR Part 702,
Colorado River Basin Salinity Control Program; 7 CFR Part 701 subpart-
Forestry Incentives Program; and 7 CFR Part 752, Water Bank program.
Subpart A of part 614 includes general provisions applicable to
informal appeals under both subparts B and C.
Appeal provisions for 7 CFR parts 12, 620, 623, 631, 632, 634, 663,
701, 702, and 752 are revised to make reference to part 614 for NRCS
appeal procedures.
IV. Commodity Credit Corporation (CCC), Federal Crop Insurance
Corporation (FCIC), and Farm Service Agency (FSA) Appeal Rules
The interim final rule makes amendments to 7 CFR parts 400 and 780
to maintain and revise the informal appeals process for adverse
decisions of the FSA regarding Federal crop insurance, CCC, and FSA
programs. The procedures for appeals under both parts will be
consolidated in part 780. The revised part 780 sets forth regulations
for requesting informal hearings or mediation in accordance with
section 275 of the Act.
Part 780 includes procedures for the handling of appeals of NRCS
technical determinations to FSA county and area committees.
Part 780 also includes procedures for the mandatory appeal of
certain FSA adverse decisions to such committees as required by 7 CFR
11.5(a) of the NAD rules of procedure.
This rule also amends part 781 to conform the hearing procedures to
that of part 780.
V. Rural Housing Service (RHS), Rural Business-Cooperative Service
(RBS), and Rural Utilities Service (RUS) Appeal Rules
7 CFR part 1900, subpart B currently contains rules for appeals of
decisions of the former Farmers Home Administration (FmHA). Either by
the Act or by delegation of the Secretary, the FmHA programs covered by
part 1900, subpart B were divided among RHS, RBS, and RUS. This rule
amends part 1900, subpart B to set forth rules for requesting informal
appeals or mediation of adverse decisions concerning direct loans, loan
guarantees, and grants under the following programs: RUS Water and
Waste Disposal Facility Loans and Grants Program, RHS Housing and
Community Facilities Loan Programs, and RBS Loan, Grant, and Guarantee
Programs and the Intermediary Relending Program.
List of Subjects
7 CFR Part 1
Administrative practice and procedure, Agriculture, Reporting and
recordkeeping requirements.
7 CFR Part 11
Administrative practice and procedure, Agriculture, Agricultural
commodities, Crop insurance, Ex parte communications, Farmers, Federal
aid programs, Guaranteed loans, Insured loans, Loan programs, Price
support programs, Soil conservation.
7 CFR Part 12
Administrative practice and procedure, Agriculture, Soil
conservation, Wetlands.
7 CFR Part 400
Administrative practice and procedure, Agriculture, Agricultural
commodities, Crop insurance.
7 CFR Part 614
Administrative practice and procedure, Agriculture, Soil
conservation, Wetlands.
7 CFR Part 620
Administrative practice and procedure, Agriculture, Soil
conservation, Wetlands.
7 CFR Part 623
Administrative practice and procedure, Agriculture, Soil
conservation, Wetlands.
7 CFR Part 631
Administrative practice and procedure, Agriculture, Soil
conservation.
7 CFR Part 632
Administrative practice and procedure, Mines, Rural areas, Soil
conservation.
7 CFR Part 634
Administrative practice and procedure, Agriculture, Soil
conservation, Water resources, Water pollution control.
7 CFR Part 663
Administrative practice and procedure, Irrigation, Soil
conservation, Water resources.
7 CFR Part 701
Administrative practice and procedure, Agriculture, Environmental
protection, Forests and forest products, Soil conservation, Wetlands.
[[Page 67308]]
7 CFR Part 702
Administrative practice and procedure, Agriculture, Soil
conservation, Water resources.
7 CFR Part 752
Administrative practice and procedure, Agriculture, Soil
Conservation, Water bank program, Water resources.
7 CFR Part 780
Administrative practice and procedure, Agriculture, Agricultural
commodities, Crop insurance, Ex parte communications, Farmers, Federal
aid programs, Loan programs, Price support programs, Soil conservation,
Wetlands.
7 CFR Part 781
Administrative practice and procedure, Agriculture, Farmers.
7 CFR Part 1900
Administrative practice and procedure, Agriculture, Business,
Community development, Farmers, Federal aid programs, Guaranteed loans,
Housing, Insured loans, Loan programs, Rural areas, Utilities.
For the reasons set out in the preamble, Title 7 of the Code of
Federal Regulations is amended as set forth below:
PART 1--ADMINISTRATIVE REGULATIONS
1. The authority citation for part 1 continues to read as follows:
Authority: 5 U.S.C. 301 and 552. Appendix A also issued under 7
U.S.C. 2244; 31 U.S.C. 9701, and 7 CFR 2.75(a)(6)(xiii).
2. Section 1.20 is revised to read as follows:
Sec. 1.20 Authentication.
When a request is received for an authenticated copy of a document
which the agency determines to make available to the requesting party,
the agency shall cause a correct copy to be prepared and sent to the
Office of the General Counsel which shall certify the same and cause
the seal of the Department to be affixed, except that the Hearing Clerk
in the Office of Administrative Law Judges may authenticate copies of
documents in the records of the Hearing Clerk and that the Director of
the National Appeals Division may authenticate copies of documents in
the records of the National Appeals Division.
PART 11--NATIONAL APPEALS DIVISION RULES OF PROCEDURE
Part 11 is added to read as follows:
PART 11--NATIONAL APPEALS DIVISION RULES OF PROCEDURE
Sec.
11.1 Definitions.
11.2 General statement.
11.3 Applicability.
11.4 Inapplicability of other laws and regulations.
11.5 Informal review of adverse decisions.
11.6 Director review of agency determination of appealability and
right of participants to Division hearing.
11.7 Ex parte communications.
11.8 Division hearings.
11.9 Director review of determinations of Hearing Officers.
11.10 Basis for determinations.
11.11 Reconsideration of Director determinations.
11.12 Effective date and implementation of final determinations of
the Division.
11.13 Judicial review.
11.14 Filing of appeals and computation of time.
Authority: 5 U.S.C. 301; Title II, Subtitle H, Pub. L. 103-354,
108 Stat. 3228 (7 U.S.C. 6991 et seq.); Reorganization Plan No. 2 of
1953 (5 U.S.C. App.).
Sec. 11.1 Definitions.
For purposes of this part:
Adverse decision means an administrative decision made by an
officer, employee, or committee of an agency that is adverse to a
participant. The term includes a denial of equitable relief by an
agency or the failure of an agency to issue a decision or otherwise act
on the request or right of the participant within timeframes specified
by agency program statutes or regulations or within a reasonable time
if timeframes are not specified in such statutes or regulations. The
term does not include a decision over which the Board of Contract
Appeals has jurisdiction.
Agency means:
(1) The Agricultural Stabilization and Conservation Service (ASCS);
(2) The Commodity Credit Corporation (CCC);
(3) The Farm Service Agency (FSA);
(4) The Farmers Home Administration (FmHA);
(5) The Federal Crop Insurance Corporation (FCIC);
(6) The Natural Resources Conservation Service (NRCS);
(7) The Rural Business-Cooperative Service (RBS);
(8) The Rural Development Administration (RDA);
(9) The Rural Housing Service (RHS);
(10) The Rural Utilities Service (RUS) (but not for programs
authorized by the Rural Electrification Act of 1936 and the Rural
Telephone Bank Act, 7 U.S.C. 901 et seq.);
(11) The Soil Conservation Service (SCS);
(12) A State, county, or area committee established under section
8(b)(5) of the Soil Conservation and Domestic Allotment Act (16 U.S.C.
590h(b)(5)); and
(13) Any successor agency to the above-named agencies, and any
other agency or office of the Department which the Secretary may
designate.
Agency record means all the materials maintained by an agency
related to an adverse decision which are submitted to the Division by
an agency for consideration in connection with an appeal under this
part, including all materials prepared or reviewed by the agency during
its consideration and decision-making process, but shall not include
records or information not related to the adverse decision at issue.
All materials contained in the agency record submitted to the Division
shall be deemed admitted as evidence for purposes of a hearing or a
record review under Sec. 11.8.
Agency representative means any person, whether or not an attorney,
who is authorized to represent the agency in an administrative appeal
under this part.
Appeal means a written request by a participant asking for review
by the National Appeals Division of an adverse decision under this
part.
Appellant means any participant who appeals an adverse decision in
accordance with this part. Unless separately set forth in this part,
the term ``appellant'' includes an authorized representative.
Authorized representative means any person, whether or not an
attorney, who is authorized in writing by a participant, consistent
with Sec. 11.6(c), to act for the participant in an administrative
appeal under this part. The authorized representative may act on behalf
of the participant except when the provisions of this part require
action by the participant or appellant personally.
Case record means all the materials maintained by the Secretary
related to an adverse decision. The case record includes both the
agency record and the hearing record.
Days means calendar days unless otherwise specified.
Department means the United States Department of Agriculture
(USDA).
Director means the Director of the Division or a designee of the
Director.
Division means the National Appeals Division established by this
part.
Equitable relief means relief which is authorized under section 326
of the Food and Agriculture Act of 1962 (7 U.S.C. 1339a) and other laws
administered by the agency.
[[Page 67309]]
Ex parte communication means an oral or written communication to
any officer or employee of the Division with respect to which
reasonable prior notice to all parties is not given, but it shall not
include requests for status reports, or inquiries on Division
procedure, in reference to any matter or proceeding connected with the
appeal involved.
Hearing, except with respect to Sec. 11.5, means a proceeding
before the Division to afford a participant the opportunity to present
testimony or documentary evidence or both in order to have a previous
determination reversed and to show why an adverse determination was in
error.
Hearing Officer means an individual employed by the Division who
conducts the hearing and determines appeals of adverse decisions by any
agency.
Hearing record means all documents, evidence, and other materials
generated in relation to a hearing under Sec. 11.8.
Implement means the taking of action by an agency of the Department
in order fully and promptly to effectuate a final determination of the
Division.
Participant means any individual or entity who has applied for, or
whose right to participate in or receive, a payment, loan, loan
guarantee, or other benefit in accordance with any program of an agency
to which the regulations in this part apply is affected by a decision
of such agency. With respect to guaranteed loans made by FSA, both the
borrower and the lender jointly must appeal an adverse decision except
that the denial or reduction of a final loss payment to a lender shall
be appealed by the lender only. The term does not include persons whose
claim(s) arise under:
(1) Programs subject to various proceedings provided for in 7 CFR
part 1;
(2) Programs governed by Federal contracting laws and regulations
(appealable under other rules and to other forums, including to the
Department's Board of Contract Appeals under 7 CFR part 24);
(3) The Freedom of Information Act (appealable under 7 CFR part 1,
subpart A);
(4) Suspension and debarment disputes, including, but not limited
to, those falling within the scope of 7 CFR parts 1407 and 3017;
(5) Export programs administered by the Commodity Credit
Corporation;
(6) Disputes between reinsured companies and the Federal Crop
Insurance Corporation;
(7) Tenant grievances or appeals prosecutable under the provisions
of 7 CFR part 1944, subpart L, under the multi-family housing program
carried out by RHS;
(8) Personnel, equal employment opportunity, and other similar
disputes with any agency or office of the Department which arise out of
the employment relationship;
(9) The Federal Tort Claims Act, 28 U.S.C. 2671 et seq., or the
Military Personnel and Civilian Employees Claims Act of 1964, 31 U.S.C.
3721; or
(10) Discrimination complaints prosecutable under the
nondiscrimination regulations at 7 CFR parts 15, 15a, 15b, and 15e.
Record review means an appeal considered by the Hearing Officer in
which the Hearing Officer's determination is based on the agency record
and other information submitted by the appellant and the agency,
including information submitted by affidavit or declaration.
Secretary means the Secretary of Agriculture.
Sec. 11.2 General statement.
(a) This part sets forth procedures for proceedings before the
National Appeals Division within the Department. The Division is an
organization within the Department, subject to the general supervision
of and policy direction by the Secretary, which is independent from all
other agencies and offices of the Department, including Department
officials at the state and local level. The Director of the Division
reports directly to the Secretary of Agriculture. The authority of the
Hearing Officers and the Director of the Division, and the
administrative appeal procedures which must be followed by program
participants who desire to appeal an adverse decision and by the agency
which issued the adverse decision, are included in this part.
(b) Pursuant to section 212(e) of the Federal Crop Insurance Reform
and Department of Agriculture Reorganization Act of 1994, Public Law
103-354 (the Act), 7 U.S.C. 6912(e), program participants shall seek
review of an adverse decision before a Hearing Officer of the Division,
and may seek further review by the Director, under the provisions of
this part prior to seeking judicial review.
Sec. 11.3 Applicability.
(a) Subject matter. The regulations contained in this part are
applicable to adverse decisions made by an agency, including, for
example, those with respect to:
(1) Denial of participation in, or receipt of benefits under, any
program of an agency;
(2) Compliance with program requirements;
(3) The making or amount of payments or other program benefits to a
participant in any program of an agency; and
(4) A determination that a parcel of land is a wetland or highly
erodible land.
(b) Limitation. The procedures contained in this part may not be
used to seek review of statutes or USDA regulations issued under
Federal law.
Sec. 11.4 Inapplicability of other laws and regulations.
The provisions of the Administrative Procedure Act generally
applicable to agency adjudications (5 U.S.C. 554, 555, 556, 557, &
3105) are not applicable to proceedings under this part. The Equal
Access to Justice Act, as amended, 5 U.S.C. 504, does not apply to
these proceedings. The Federal Rules of Evidence, 28 U.S.C. App., shall
not apply to these proceedings.
Sec. 11.5 Informal review of adverse decisions.
(a) Required informal review of FSA adverse decisions. A
participant must seek an informal review of an adverse decision issued
at the field service office level by an officer or employee of FSA, or
by any employee of a county or area committee established under section
8(b)(5) of the Soil Conservation and Domestic Allotment Act, 16 U.S.C.
590h(b)(5), before NAD will accept an appeal of an FSA adverse
decision. Such informal review shall be done by the county or area
committee with responsibility for the adverse decision at issue. The
procedures for requesting such an informal review before FSA are found
in 7 CFR part 780. After receiving a decision upon review by a county
or area committee, a participant may seek further informal review by
the State FSA committee or may appeal directly to NAD under
Sec. 11.6(b).
(b) Optional informal review. With respect to adverse decisions
issued at the State office level of FSA and adverse decisions of all
other agencies, a participant may request an agency informal review of
an adverse decision of that agency prior to appealing to NAD.
Procedures for requesting such an informal review are found at 7 CFR
part 780 (FSA), 7 CFR part 614 (NRCS), 7 CFR part 1900, subpart B
(RUS), 7 CFR part 1900, subpart B (RBS), and 7 CFR part 1900, subpart B
(RHS).
(c) Mediation. A participant also shall have the right to utilize
any available alternative dispute resolution (ADR) or mediation
program, including any mediation program available under title
[[Page 67310]]
V of the Agriculture Credit Act of 1987, 7 U.S.C. 5101 et seq., in
order to attempt to seek resolution of an adverse decision of an agency
prior to a NAD hearing. If a participant:
(1) Requests mediation or ADR prior to filing an appeal with NAD,
the participant stops the running of the 30-day period during which a
participant may appeal to NAD under Sec. 11.6(b)(1), and will have the
balance of days remaining in that period to appeal to NAD once
mediation or ADR has concluded.
(2) Requests mediation or ADR after having filed an appeal to NAD
under Sec. 11.6(b), but before the hearing, the participant will be
deemed to have waived his right to have a hearing within 45 days under
Sec. 11.8(c)(1) but shall have the right to have a hearing within 45
days after conclusion of mediation or ADR.
Sec. 11.6 Director review of agency determination of appealability and
right of participants to Division hearing.
(a) Director review of agency determination of appealability. (1)
Not later than 30 days after the date on which a participant receives a
determination from an agency that an agency decision is not appealable,
the participant must submit a written request to the Director to review
the determination in order to obtain such review by the Director.
(2) The Director shall determine whether the decision is adverse to
the individual participant and thus appealable or is a matter of
general applicability and thus not subject to appeal, and will issue a
final determination notice that upholds or reverses the determination
of the agency. This final determination is not appealable. If the
Director reverses the determination of the agency, the Director will
notify the participant and the agency of that decision and inform the
participant of his or her right to proceed with an appeal.
(3) The Director may delegate his or her authority to conduct a
review under this subsection to any subordinate official of the
Division other than a Hearing Officer. In any case in which such review
is conducted by such a subordinate official, the subordinate official's
determination shall be considered to be the determination of the
Director and shall be final and not appealable.
(b) Appeals of adverse decisions. (1) To obtain a hearing under
Sec. 11.8, a participant personally must request such hearing not later
than 30 days after the date on which the participant first received
notice of the adverse decision or after the date on which the
participant receives notice of the Director's determination that a
decision is appealable. In the case of the failure of an agency to act
on the request or right of a recipient, a participant personally must
request such hearing not later than 30 days after the participant knew
or reasonably should have known that the agency had not acted within
the timeframes specified by agency program regulations, or, where such
regulations specify no timeframes, not later than 30 days after the
participant reasonably should have known of the agency's failure to
act.
(2) A request for a hearing shall be in writing and personally
signed by the participant, and shall include a copy of the adverse
decision to be reviewed, if available, along with a brief statement of
the participant's reasons for believing that the decision, or the
agency's failure to act, was wrong. The participant also shall send a
copy of the request for a hearing to the agency, and may send a copy of
the adverse decision to be reviewed to the agency, but failure to do
either will not constitute grounds for dismissal of the appeal. Instead
of a hearing, the participant may request a record review.
(c) If a participant is represented by an authorized
representative, the authorized representative must file a declaration
with NAD, executed in accordance with 28 U.S.C. 1746, stating that the
participant has duly authorized the declarant in writing to represent
the participant for purposes of a specified adverse decision or
decisions, and attach a copy of the written authorization to the
declaration.
Sec. 11.7 Ex parte communications.
(a)(1) At no time between the filing of an appeal and the issuance
of a final determination under this part shall any officer or employee
of the Division engage in ex parte communications regarding the merits
of the appeal with any person having any interest in the appeal pending
before the Division, including any person in an advocacy or
investigative capacity. This prohibition does not apply to:
(i) Discussions of procedural matters related to an appeal; or
(ii) Discussions of the merits of the appeal where all parties to
the appeal have been given notice and an opportunity to participate.
(2) In the case of a communication described in paragraph
(a)(1)(ii) of this section, a memorandum of any such discussion shall
be included in the hearing record.
(b) No interested person shall make or knowingly cause to be made
to any officer or employee of the Division an ex parte communication
relevant to the merits of the appeal.
(c) If any officer or employee of the Division receives an ex parte
communication in violation of this section, the one who receives the
communication shall place in the hearing record:
(1) All such written communications;
(2) Memoranda stating the substance of all such oral
communications; and
(3) All written responses to such communications, and memoranda
stating the substance of any oral responses thereto.
(d) Upon receipt of a communication knowingly made or knowingly
caused to be made by a party in violation of this section the Hearing
Officer or Director may, to the extent consistent with the interests of
justice and the policy of the underlying program, require the party to
show cause why such party's claim or interest in the appeal should not
be dismissed, denied, disregarded, or otherwise adversely affected on
account of such violation.
Sec. 11.8 Division hearings.
(a) General rules. (1) The Director, the Hearing Officer, and the
appellant shall have access to the agency record of any adverse
decision appealed to the Division for a hearing. Upon request by the
appellant, the agency shall provide the appellant a copy of the agency
record.
(2) The Director and Hearing Officer shall have the authority to
administer oaths and affirmations, and to require, by subpoena, the
attendance of witnesses and the production of evidence. A Hearing
Officer shall obtain the concurrence of the Director prior to issuing a
subpoena.
(i) A subpoena requiring the production of evidence may be
requested and issued at any time while the case is pending before the
Division.
(ii) An appellant or an agency, acting through any appropriate
official, may request the issuance of a subpoena requiring the
attendance of a witness by submitting such a request in writing at
least 14 days before the scheduled date of a hearing. The Director or
Hearing Officer shall issue a subpoena at least 7 days prior to the
scheduled date of a hearing.
(iii) A subpoena shall be issued only if the Director or a Hearing
Officer determines that:
(A) For a subpoena of documents, the appellant or the agency has
established that production of documentary evidence is necessary and is
reasonably calculated to lead to information which would affect the
final determination or
[[Page 67311]]
is necessary to fully present the case before the Division; or
(B) For a subpoena of a witness, the appellant or the agency has
established that either a representative of the Department or a private
individual possesses information that is pertinent and necessary for
disclosure of all relevant facts which could impact the final
determination, that the information cannot be obtained except through
testimony of the person, and that the testimony cannot be obtained
absent issuance of a subpoena.
(iv) The party requesting issuance of a subpoena shall arrange for
service. Service of a subpoena upon a person named therein may be made
by registered or certified mail, or in person. Personal service shall
be made by personal delivery of a copy of the subpoena to the person
named therein by any person who is not a party and who is not less than
18 years of age. Proof of service shall be made by filing with the
Hearing Officer or Director who issued the subpoena a statement of the
date and manner of service and of the names of the persons served,
certified by the person who made the service in person or by return
receipts for certified or registered mail.
(v) A party who requests that a subpoena be issued shall be
responsible for the payment of any reasonable travel and subsistence
costs incurred by the witness in connection with his or her appearance
and any fees of a person who serves the subpoena in person. The
Department shall pay the costs associated with the appearance of a
Department employee whose role as a witness arises out of his or her
performance of official duties, regardless of which party requested the
subpoena. The failure to make payment of such charges on demand may be
deemed by the Hearing Officer or Director as sufficient ground for
striking the testimony of the witness and the evidence the witness has
produced.
(vi) If a person refuses to obey a subpoena, the Director, acting
through the Office of the General Counsel of the Department and the
Department of Justice, may apply to the United States District Court in
the jurisdiction where that person resides to have the subpoena
enforced as provided in the Federal Rules of Civil Procedure (28 U.S.C.
App.).
(3) Testimony required by subpoena pursuant to paragraph (a)(2) of
this section may, at the discretion of the Director or a Hearing
Officer, be presented at the hearing either in person or
telephonically.
(b) Hearing procedures applicable to both record review and
hearings. (1) Upon the filing of an appeal under this part of an
adverse decision by any agency, the agency promptly shall provide the
Division with a copy of the agency record. If requested by the
appellant prior to the hearing, a copy of such agency record shall be
provided to the appellant by the agency within 10 days of receipt of
the request by the agency.
(2) The Director shall assign the appeal to a Hearing Officer and
shall notify the appellant and agency of such assignment. The notice
also shall advise the appellant and the agency of the documents
required to be submitted under paragraph (c)(2) of this section, and
notify the appellant of the option of having a hearing by telephone.
(3) The Hearing Officer will receive evidence into the hearing
record without regard to whether the evidence was known to the agency
officer, employee, or committee making the adverse decision at the time
the adverse decision was made.
(c) Procedures applicable only to hearings. (1) Upon a timely
request for a hearing under Sec. 11.6(b), an appellant has the right to
have a hearing by the Division on any adverse decision within 45 days
after the date of receipt of the request for the hearing by the
Division.
(2) The Hearing Officer shall set a reasonable deadline for
submission of the following documents:
(i) By the appellant:
(A) A short statement of why the decision is wrong;
(B) A copy of any document not in the agency record that the
appellant anticipates introducing at the hearing; and
(C) A list of anticipated witnesses and brief descriptions of the
evidence such witnesses will offer.
(ii) By the agency:
(A) A copy of the adverse decision challenged by the appellant;
(B) A written explanation of the agency's position, including the
regulatory or statutory basis therefor;
(C) A copy of any document not in the agency record that the agency
anticipates introducing at the hearing; and
(D) A list of anticipated witnesses and brief descriptions of the
evidence such witnesses will offer.
(3) Not less than 14 days prior to the hearing, the Division must
provide the appellant, the authorized representative, and the agency a
notice of hearing specifying the date, time, and place of the hearing.
The hearing will be held in the State of residence of the appellant, as
determined by the Hearing Officer, or at a location that is otherwise
convenient to the appellant, the agency, and the Division. The notice
also shall notify all parties of the right to obtain an official record
of the hearing.
(4) Pre-hearing conference. Whenever appropriate, the Hearing
Officer shall hold a pre-hearing conference in order to attempt to
resolve the dispute or to narrow the issues involved. Such pre-hearing
conference shall be held by telephone unless the Hearing Officer and
all parties agree to hold such conference in person.
(5) Conduct of the hearing. (i) A hearing before a Hearing Officer
will be in person unless the appellant agrees to a hearing by
telephone.
(ii) The hearing will be conducted by the Hearing Officer in the
manner determined by the Division most likely to obtain the facts
relevant to the matter or matters at issue. The Hearing Officer will
allow the presentation of evidence at the hearing by any party without
regard to whether the evidence was known to the officer, employee, or
committee of the agency making the adverse decision at the time the
adverse decision was made. The Hearing Officer may confine the
presentation of facts and evidence to pertinent matters and exclude
irrelevant, immaterial, or unduly repetitious evidence, information, or
questions. Any party shall have the opportunity to present oral and
documentary evidence, oral testimony of witnesses, and arguments in
support of the party's position; controvert evidence relied on by any
other party; and question all witnesses. When appropriate, agency
witnesses requested by the appellant will be made available at the
hearing. Any evidence may be received by the Hearing Officer without
regard to whether that evidence could be admitted in judicial
proceedings.
(iii) An official record shall be made of the proceedings of every
hearing. This record will be made by an official tape recording by the
Division. In addition, either party may request that a verbatim
transcript be made of the hearing proceedings and that such transcript
shall be made the official record of the hearing. The party requesting
a verbatim transcript shall pay for the transcription service, shall
provide a certified copy of the transcript to the Hearing Officer free
of charge, and shall allow any other party desiring to purchase a copy
of the transcript to order it from the transcription service.
(6) Absence of parties. (i) If at the time scheduled for the
hearing either the appellant or the agency representative is absent,
and no appearance is made on behalf of such absent party, or no
arrangements have been made for rescheduling the hearing, the Hearing
[[Page 67312]]
Officer has the option to cancel the hearing unless the absent party
has good cause for the failure to appear. If the Hearing Officer elects
to cancel the hearing, the Hearing Officer may:
(A) Treat the appeal as a record review and issue a determination
based on the agency record as submitted by the agency and the hearing
record developed prior to the hearing date;
(B) Accept evidence into the hearing record submitted by any party
present at the hearing, and then issue a determination; or
(C) Dismiss the appeal.
(ii) When a hearing is cancelled due to the absence of a party, the
Hearing Officer will add to the hearing record any additional evidence
submitted by any party present, provide a copy of such evidence to the
absent party or parties, and allow the absent party or parties 10 days
to provide a response to such additional evidence for inclusion in the
hearing record.
(iii) Where an absent party has demonstrated good cause for the
failure to appear, the Hearing Officer shall reschedule the hearing
unless all parties agree to proceed without a hearing.
(7) Post-hearing procedure. The Hearing Officer will leave the
hearing record open after the hearing for 10 days, or for such other
period of time as the Hearing Officer shall establish, to allow the
submission of information by the appellant or the agency, to the extent
necessary to respond to new facts, information, arguments, or evidence
presented or raised at the hearing. Any such new information will be
added by the Hearing Officer to the hearing record and sent to the
other party or parties by the submitter of the information. The Hearing
Officer, in his or her discretion, may permit the other party or
parties to respond to this post-hearing submission.
(d) Interlocutory review. Interlocutory review by the Director of
rulings of a Hearing Officer are not permitted under the procedures of
this part.
(e) Burden of proof. The appellant has the burden of proving that
the adverse decision of the agency was erroneous by a preponderance of
the evidence.
(f) Timing of issuance of determination. The Hearing Officer will
issue a notice of the determination on the appeal to the named
appellant, the authorized representative, and the agency not later than
30 days after a hearing or the closing date of the hearing record in
cases in which the Hearing Officer receives additional evidence from
the agency or appellant after a hearing. In the case of a record
review, the Hearing Officer will issue a notice of determination within
45 days of receipt of the appellant's request for a record review. Upon
the Hearing Officer's request, the Director may establish an earlier or
later deadline. A notice of determination shall be accompanied by a
copy of the procedures for filing a request for Director review under
Sec. 11.9. If the determination is not appealed to the Director for
review under Sec. 11.9, the notice provided by the Hearing Officer
shall be considered to be a notice of a final determination under this
part.
Sec. 11.9 Director review of determinations of Hearing Officers.
(a) Requests for Director review. (1) Not later than 30 days after
the date on which an appellant receives the determination of a Hearing
Officer under Sec. 11.8, the appellant must submit a written request,
signed personally by the named appellant, to the Director to review the
determination in order to be entitled to such review by the Director.
Such request shall include specific reasons why the appellant believes
the determination is wrong.
(2) Not later than 15 business days after the date on which an
agency receives the determination of a Hearing Officer under Sec. 11.8,
the head of the agency may make a written request that the Director
review the determination. Such request shall include specific reasons
why the agency believes the determination is wrong, including citations
of statutes or regulations that the agency believes the determination
violates. Any such request may be made by the head of an agency only,
or by a person acting in such capacity, but not by any subordinate
officer of such agency.
(3) A copy of a request for Director review submitted under this
paragraph (a) shall be provided simultaneously by the submitter to each
party to the appeal.
(b) Notification of parties. The Director promptly shall notify all
parties of receipt of a request for review.
(c) Responses to request for Director review. Other parties to an
appeal may submit written responses to a request for Director review
within 5 business days from the date of receipt of a copy of the
request for review.
(d) Determination of Director. (1) The Director will conduct a
review of the determination of the Hearing Officer using the agency
record, the hearing record, the request for review, any responses
submitted under paragraph (c) of this section, and such other arguments
or information as may be accepted by the Director, in order to
determine whether the decision of the Hearing Officer is supported by
substantial evidence. Based on such review, the Director will issue a
final determination notice that upholds, reverses, or modifies the
determination of the Hearing Officer. The Director's determination upon
review of a Hearing Officer's decision shall be considered to be the
final determination under this part and shall not be appealable.
However, if the Director determines that the hearing record is
inadequate or that new evidence has been submitted, the Director may
remand all or a portion of the determination to the Hearing Officer for
further proceedings to complete the hearing record or, at the option of
the Director, to hold a new hearing.
(2) The Director will complete the review and either issue a final
determination or remand the determination not later than--
(i) 10 business days after receipt of the request for review, in
the case of a request by the head of an agency; or
(ii) 30 business days after receipt of the request for review, in
the case of a request by an appellant.
(3) In any case or any category of cases, the Director may delegate
his or her authority to conduct a review under this section to any
Deputy or Associate Directors of the Division. In any case in which
such review is conducted by a Deputy or Associate Director under
authority delegated by the Director, the Deputy or Associate Director's
determination shall be considered to be the determination of the
Director under this part and shall be final and not appealable.
(e) Equitable relief. In reaching a decision on an appeal, the
Director shall have the authority to grant equitable relief under this
part in the same manner and to the same extent as such authority is
provided an agency under applicable laws and regulations.
Sec. 11.10 Basis for determinations.
(a) In making a determination, the Hearing Officers and the
Director are not bound by previous findings of facts on which the
agency's adverse decision was based.
(b) In making a determination on the appeal, Hearing Officers and
the Director shall ensure that the decision is consistent with the laws
and regulations of the agency, and with the generally applicable
interpretations of such laws and regulations.
(c) All determinations of the Hearing Officers and the Director
must be based on information from the case record, laws applicable to
the matter at issue, and applicable regulations published in the
Federal Register and in effect on the date of the adverse decision or
the date on which the acts that gave rise to the
[[Page 67313]]
adverse decision occurred, whichever date is appropriate under the
applicable agency program laws and regulations.
Sec. 11.11 Reconsideration of Director determinations.
(a) Reconsideration of a determination of the Director may be
requested by the appellant or the agency within 10 days of receipt of
the determination. The Director will not consider any request for
reconsideration that does not contain a detailed statement of a
material error of fact made in the determination, or a detailed
explanation of how the determination is contrary to statute or
regulation, which would justify reversal or modification of the
determination.
(b) The Director shall issue a notice to all parties as to whether
a request for reconsideration meets the criteria in paragraph (a) of
this section. If the request for reconsideration meets such criteria,
the Director shall include a copy of the request for reconsideration in
the notice to the non-requesting parties to the appeal. The non-
requesting parties shall have 5 days from receipt of such notice from
the Director to file a response to the request for reconsideration with
the Director.
(c) The Director shall issue a decision on the request for
reconsideration within 5 days of receipt of responses from the non-
requesting parties. If the Director's decision upon reconsideration
reverses or modifies the final determination of the Director rendered
under Sec. 11.9(d), the Director's decision on reconsideration will
become the final determination of the Director under Sec. 11.9(d) for
purposes of this part.
Sec. 11.12 Effective date and implementation of final determinations
of the Division.
(a) On the return of a case to an agency pursuant to the final
determination of the Division, the head of the agency shall implement
the final determination not later than 30 days after the effective date
of the notice of the final determination.
(b) A final determination will be effective as of the date of
filing of an application, the date of the transaction or event in
question, or the date of the original adverse decision, whichever is
applicable under the applicable agency program statutes or regulations.
Sec. 11.13 Judicial review.
(a) A final determination of the Division shall be reviewable and
enforceable by any United States District Court of competent
jurisdiction in accordance with chapter 7 of title 5, United States
Code.
(b) An appellant may not seek judicial review of any agency adverse
decision appealable under this part without receiving a final
determination from the Division pursuant to the procedures of this
part.
Sec. 11.14 Filing of appeals and computation of time.
(a) An appeal, a request for Director review, or any other document
will be considered ``filed'' when delivered in writing to the Division,
when postmarked, or when a complete facsimile copy is received by the
Division.
(b) Whenever the final date for any requirement of this part falls
on a Saturday, Sunday, Federal holiday, or other day on which the
Division is not open for the transaction of business during normal
working hours, the time for filing will be extended to the close of
business on the next working day.
(c) The time for filing an appeal, a request for Director review,
or any other document expires at 5:00 p.m. local time at the office of
the Division to which the filing is submitted on the last day on which
such filing may be made.
PART 12--HIGHLY ERODIBLE LAND AND WETLAND CONSERVATION
1. The authority citation for part 12 continues to read as follows:
Authority: 16 U.S.C. 3801 et seq.
2. Section 12.12 is revised to read as follows:
Sec. 12.12 Appeals.
Any person who has been or who would be denied program benefits in
accordance with Sec. 12.4 as the result of any determination made in
accordance with the provisions of this part may obtain a review of such
determination in accordance with the administrative appeals procedures
of the agency which rendered such determination. Agency appeal
procedures are contained in the Code of Federal Regulations as follows:
FSA, 7 CFR part 780; NRCS, 7 CFR part 614; RHS, RBS, and RUS, 7 CFR
part 1900, subpart B.
PART 400--GENERAL ADMINISTRATIVE REGULATIONS
1-2. Subpart J is revised to read as follows:
Subpart J--Appeal Procedure--Regulations
Authority: 7 U.S.C. 1506(p).
Sec. 400.90 Applicability.
Persons who are insured or believe they are insured under contracts
of insurance issued under the Federal Crop Insurance Act must obtain
appeal and reconsideration of decisions made under the provisions of
this chapter in accordance with part 780 of this title.
PART 614--APPEAL PROCEDURES
1. Part 614 is revised to read as follows:
PART 614--APPEAL PROCEDURES
Subpart A--General Provisions
Sec.
614.1 Purpose and scope.
614.2 Definitions.
614.3 Applicability.
614.4 Reservation of authority.
614.5 Decisions not subject to appeal.
Subpart B--Appeals of Technical Determinations Related to the
Conservation Title (Title XII) of the Food Security Act of 1985, as
Amended
614.100 Applicability.
614.101 Notice of preliminary technical determinations.
614.102 Mediation of preliminary technical determinations.
614.103 Final determinations.
614.104 Appeals of technical determinations.
Subpart C--Appeals of Decision Related to Conservation Programs (non-
Title XII)
614.200 Applicability.
614.201 Notice of final decisions.
614.202 Time frames for filing requests for informal hearings.
614.203 Mediation of adverse final decisions.
614.204 Appeals of adverse final decisions.
Authority: 5 U.S.C. 301, sections 226 and 275 of Pub. L. 103-354
(7 U.S.C. 6932 and 6995); 16 U.S.C. 3843(a).
Subpart A--General Provisions
Sec. 614.1 Purpose and scope.
This part sets forth the informal procedures under which a
landowner or program participant may appeal adverse technical
determinations or decisions made by officials of the Natural Resources
Conservation Service (NRCS) or its successor agency.
Sec. 614.2 Definitions.
Adverse technical determination or decision includes, in addition
to the definition of adverse decision in 7 CFR part 11, an NRCS
technical determination or decision that affects the legal substantive
status of the land, though it may not necessarily be adverse.
Chief means the Chief of NRCS. For the purposes of this part, the
term ``Chief'' includes an official of NRCS national headquarters
designated by the Chief to act for the Chief in making decisions under
this part.
Conservation district means any district or unit of State or local
government formed under State law or territorial law for the express
purpose of developing and carrying out a local soil and water
conservation program. Such
[[Page 67314]]
district or unit of government may be referred to as a conservation
district, soil conservation district, soil and water conservation
district, natural resource district, land conservation committee, or a
similar name.
County committee means a Farm Service Agency (FSA) county or area
committee established in accordance with section 8(b) of the Soil
Conservation and Domestic Allotment Act (16 U.S.C. 590h(b)).
Decision means a conclusion reached by an NRCS official based on
applicable regulations and program instructions which relates to
eligibility for program benefits, including a technical determination
used as a basis for the decision.
Designated conservationist means the NRCS official, usually the
district conservationist, whom the State Conservationist designates to
be responsible for the program or compliance requirement to which this
part is applicable.
Mediation means a process in which a neutral third party, the
mediator, meets with the disputing parties (e.g., the landowner or
program participant and the agency), facilitates discussions, and works
with the parties to resolve their disputes, narrow areas of
disagreement, and improve communications and relationships. A mediator
has no authority to render a decision or determination.
Preliminary technical determination means the initial written
technical determination provided to a client which will become final
after 30 days unless the client takes action in accordance with
Sec. 614.101 to stay the preliminary technical determination from
becoming final.
State Conservationist means the NRCS official in charge of NRCS
operations within a State, as set forth in part 600 of this chapter.
Technical determination means a conclusion concerning the status
and condition of the natural resources and cultural practices based on
science and best professional judgment of natural resource
professionals concerning the soils, water, air, plants, and animals.
Refer to 7 CFR 11.1 for other definitions applicable to appeals of
adverse technical determinations and decisions covered by this part.
Sec. 614.3 Applicability.
(a) Appeals of adverse technical determinations and adverse
decisions covered by this part are also governed by National Appeals
Division (NAD) regulations at 7 CFR part 11.
(b) Decisions which are subject to this part include any decision
under one or more NRCS programs; and technical determinations or
decisions that affect the status of the land even though they may not
affect the landowner's or program participant's eligibility for USDA
program benefits.
(c) The failure of an official of NRCS to issue a technical
determination or decision is subject to this part.
(d) Complaints involving discrimination in program delivery will be
handled under the existing USDA civil rights rules and regulations.
(e) Appeals on contractual issues that are subject to the
jurisdiction of the Agriculture Board of Contract Appeals are not
appealable under the procedures within this part.
Sec. 614.4 Reservation of authority.
Nothing contained in the regulations of this part shall preclude
the Secretary of Agriculture or the Chief from determining at any time
any question arising under the programs to which the regulations of
this part apply, or from reversing or modifying in writing, with
sufficient reason given therefore, any technical determination or
decision made by an NRCS official.
Sec. 614.5 Decisions not subject to appeal.
The following are examples of decisions which are not appealable:
(a) General program requirements that apply to all participants;
(b) Science-based formulas and criteria;
(c) Procedural decisions relating to administration of the
programs; and
(d) Denials of assistance due to lack of funds or authority.
Subpart B--Appeals of Technical Determinations Related to the
Conservation Title (Title XII) of the Food Security Act of 1985, as
Amended
Sec. 614.100 Applicability.
The provisions of this subpart set forth the procedures under which
a landowner or program participant may seek mediation of a preliminary
technical determination or appeal from technical determinations made by
NRCS officials on or after January 16, 1996 regarding technical
determinations within the following programs:
(1) Highly Erodible Land Conservation;
(2) Wetland Conservation, including wetland technical
determinations made by NRCS officials not related to a request for USDA
program benefits;
(3) Conservation Reserve Program;
(4) Wetlands Reserve Program;
(5) Agricultural Water Quality Incentives Program; and
(6) Environmental Easement Program.
Sec. 614.101 Notice of preliminary technical determinations.
(a) All preliminary technical determinations related to programs
provided for in Sec. 614.100 shall be in writing and shall inform the
landowner or program participant of the following:
(1) The preliminary technical determination will become final after
30 days if the landowner or program participant does not arrange with
the designated conservationist for either or both of the following
options:
(i) A field visit to the site to gather additional information and
to discuss the facts concerning the preliminary technical
determination, together with, at the option of the conservation
district, a district representative; and
(ii) Mediation.
(2) Once the technical determination is final, the landowner or
program participant may appeal the technical determination to the FSA
county or area committee pursuant to 7 CFR part 780. Landowners or
program participants wishing to appeal must exhaust any available
appeal procedures through the FSA county committee prior to appealing
to NAD. Judicial review is available only as specified in 7 CFR part
11.
(b) The document containing the preliminary technical determination
shall be mailed or hand delivered to the landowner or program
participant.
Sec. 614.102 Mediation of preliminary technical determinations.
(a)(1) Any dispute with respect to a preliminary technical
determination related to the programs provided in Sec. 614.100 shall,
at the request of the landowner or program participant, be mediated:
(i) Through certified individuals in those States where a State
mediation program certified by the United States Department of
Agriculture (USDA) has been established. Conservation district
officials in certified State Mediation Program States may become
certified by the State and utilized for mediation, if they choose to
participate.
(ii) In States with no certified mediation program in effect,
through mediation by a qualified representative of a local conservation
district, if a local conservation district chooses to participate. Upon
mutual agreement of the parties, other individuals may serve as
mediators.
(2) Upon receiving a request for mediation, NRCS shall notify other
USDA and Federal agencies, as appropriate.
(b) The parties shall have not more than 30 days to reach an
agreement following a mediation session. The
[[Page 67315]]
mediator shall notify the designated conservationist in writing at the
end of this period whether the parties reached an agreement. Any
agreement reached during, or as a result of, the mediation process
shall conform to the statutory, regulatory, and manual provisions
governing the program.
Sec. 614.103 Final determinations.
(a) Preliminary technical determinations shall become final:
(1) 30 days after receipt by the landowner or program participant
of the notice of a preliminary technical determination issued pursuant
to Sec. 614.101, unless a field visit or mediation is requested;
(2) After the earlier of 30 days after the field visit provided for
under Sec. 614.101(a) or receipt by the landowner or program
participant of a final determination from the designated
conservationist; or
(3) 30 days after a mediation session if a mutual agreement has not
been reached by the parties.
(b) The final technical determination shall set forth the decision,
the basis for the decision, including all factors, technical criteria,
and facts relied upon in making the decision, and shall inform the
landowner or program participant of the procedure for requesting and
pursuing further review.
Sec. 614.104 Appeals of technical determinations.
(a) Technical determinations related to the programs in
Sec. 614.100 may only be appealed, pursuant to the provisions of 7 CFR
part 780, to the FSA county committee with jurisdiction.
(b) In cases where a field visit has not already been completed in
accordance with Sec. 614.101(a), a field visit shall be completed by
the designated conservationist before the FSA county committee
considers the appeal.
(c) If the FSA county committee hearing the appeal requests review
of the technical determination by the applicable State Conservationist
prior to issuing their decision, the State Conservationist may:
(1) Designate an appropriate NRCS official to gather any additional
information necessary for review of the technical determination;
(2) Obtain additional oral and documentary evidence from any party
with personal or expert knowledge about the facts under review; and
(3) Conduct a field visit to review and obtain additional
information and to discuss the facts concerning the technical
determination. The State Conservationist shall provide the applicable
FSA county committee with a written technical determination, including
all factors, technical criteria, and facts relied upon in making the
technical determination.
(d) Any landowner or program participant who is adversely affected
by a decision of the FSA county committee may appeal to NAD in
accordance with 7 CFR part 11.
Subpart C--Appeals of Decisions Related to Conservation Programs (non-
Title XII)
Sec. 614.200 Applicability.
The provisions of this subpart set forth the procedures under which
a landowner or program participant may seek an informal hearing on
adverse decisions made by NRCS officials (exclusive of those decisions
that are appealable to the USDA Board of Contract Appeals) after
January 16, 1996 in the following program areas:
(1) Great Plains Conservation Program;
(2) Rural Abandoned Mine Program;
(3) Emergency Watershed Projects;
(4) Rural Clean Water Program;
(5) Colorado River Basin Salinity Control Program;
(6) Forestry Incentive Program;
(7) Water Bank Program;
(8) Flood Prevention and Watershed Protection Programs;
(9) Any other program which subsequently incorporates these
procedures through reference to this subpart within the program
regulations.
Sec. 614.201 Notice of final decisions.
(a) All final decisions related to programs provided for in
Sec. 614.200 that are made by the designated conservationist shall be
in writing and shall inform the landowner or program participant of
their right to request any or all of the following:
(1) An informal hearing before NRCS;
(2) Mediation; or
(3) A hearing before NAD in accordance with 7 CFR part 11.
(b) The document containing the decision shall be mailed or hand
delivered to the landowner or program participant.
Sec. 614.202 Time frames for filing requests for informal hearings.
(a) A request for an informal hearing before NRCS shall be filed
within 30 days after written notice of the final decision, which is the
subject of the request, is mailed or otherwise made available to the
landowner or program participant. A request for an informal hearing
shall be considered ``filed'' when personally delivered in writing to
the appropriate reviewing authority or when the properly addressed
request, postage paid, is postmarked.
(b) A request for appeal may be accepted and acted upon even though
it is not filed within the time prescribed in paragraph (a) of this
section if, in the judgment of the reviewing authority with whom such
request is filed, the circumstances warrant such action.
Sec. 614.203 Mediation of adverse final decisions.
(a) Any dispute with respect to an adverse final decision related
to the programs provided in Sec. 614.200 shall, at the request of the
landowner or program, be mediated:
(1) Through certified individual in those States where a State
Mediation Program has been established. Conservation district officials
in certified State Mediation Program States may become certified by the
State and utilized for mediation, if they choose to participate.
(2) In States where no certified mediation program is in effect,
through mediation by a qualified representative of a local conservation
district, if a local conservation district chooses to participate. Upon
mutual agreement of the parties, other individuals may serve as
mediators.
(b)(1) The parties shall have not more than 30 days to reach an
agreement following a mediation session. The mediator shall notify the
designated conservationist in writing at the end of this period whether
the parties reached an agreement.
(2) Any agreement reached during, or as a result of, the mediation
process shall conform to the statutory, regulatory, and manual
provisions governing the program.
(3) If the parties fail to reach an agreement within the specified
period, the designated conservationist shall have up to 30 days after
the conclusion of mediation to issue a final decision.
Sec. 614.204 Appeals of adverse final decisions.
(a) Any landowner or program participant, who is adversely affected
by a decision made by a designated conservationist related to the
programs in Sec. 614.200, may appeal the decision to the State
Conservationist in the applicable State for an informal hearing or to
NAD in accordance with 7 CFR part 11.
(b) The State Conservationist may designate a NRCS official to
gather information and conduct the informal hearing before making a
decision.
(c) Any landowner or program participant who is adversely affected
by a decision of the State Conservationist may appeal to NAD in
accordance with 7 CFR part 11.
[[Page 67316]]
PART 620--WETLANDS RESERVE PROGRAM
1. The authority citation for part 620 continues to read as
follows:
Authority: 16 U.S.C. 590a et seq., 3837 et seq.
2. Section 620.17(a) is revised to read as follows:
Sec. 620.17 Appeals.
(a) A person participating in the WRP may obtain review of any
administrative determination concerning eligibility for participation
utilizing the administrative appeal procedures in 7 CFR part 614, 7 CFR
part 780, and 7 CFR part 11, as appropriate.
* * * * *
PART 623--EMERGENCY WETLANDS RESERVE PROGRAM
1. The authority citation for part 623 continues to read as
follows:
Authority: 16 U.S.C. 3837-3837f; Pub. L. 103-75, Chapter 1, 107
Stat. 739, 742.
2. Section 623.20 is revised to read as follows;
Sec. 623.20 Appeals.
A participant in the EWRP may obtain a review of any administrative
determination concerning land eligibility, development of a WRPO, or
any adverse determination under this part in accordance with the
administrative appeal regulations provided in part 614 of this title.
PART 631--GREAT PLAINS CONSERVATION PROGRAM
1. The authority citation for part 631 continues to read as
follows:
Authority: 16 U.S.C. 590p(b).
2. Section 631.13 is revised to read as follows:
Sec. 631.13 Disputes and appeals for matters other than contract
violations.
Applicants or participants may appeal decisions regarding matters
other than contract disputes under this part in accordance with part
614 of this title.
PART 632--RURAL ABANDONED MINE PROGRAM
1. The authority citation for part 632 continues to read as
follows:
Authority: Sec. 406, Pub. L. 95-87; 91 Stat. 460 (30 U.S.C.
1236).
2. Section 632.40 is revised to read as follows:
Sec. 632.40 Appeals.
Land users may appeal decisions under this part in accordance with
part 614 of this title.
PART 634--RURAL CLEAN WATER PROGRAM
1. The authority citation for part 634 continues to read as
follows:
Authority: Sec. 35, Pub. L. 95-217, 91 Stat. 1579 (33 U.S.C.
1288).
2. Section 634.30 is revised to read as follows:
Sec. 634.30 Appeals in USDA administered projects.
The participant in a USDA-administered RCWP project may appeal
decisions of the administering agency in accordance with part 614 of
this title.
PART 663--WELLTON-MOHAWK IRRIGATION IMPROVEMENT PROGRAM
1. The authority citation for part 663 continues to read as
follows:
Authority: Pub. L. 93-320, 88 Stat. 266 (43 U.S.C. 1571 et
seq.); sec. 601, Pub. L. 72-212, 47 Stat. 417 (31 U.S.C. 686).
2. Section 663.17 is revised to read as follows:
Sec. 663.17 Appeals.
A decision under this part may be appealed by a cooperator in
accordance part 614 of this title.
PART 701--CONSERVATION AND ENVIRONMENTAL PROGRAMS
1. The authority citation for part 701 continues to read as
follows:
Authority: 16 U.S.C. 590d, 590g-590o, 590p(a), 590q, 1501-1510,
1606, 2101-2111, 2201-2205; 48 U.S.C. 1469d(c).
2. Section 701.76 is revised to read as follows:
Sec. 701.76 Appeals.
Any person may obtain review of determinations affecting
participation in:
(a) The Forestry Incentive Program, in accordance with part 614 of
this title; and
(b) All other programs within this part, in accordance with part
780 of this title.
PART 702--COLORADO RIVER BASIN SALINITY (CRSC) CONTROL PROGRAM
1. The authority citation for part 702 continues to read as
follows:
Authority: Sec. 201, Pub. L. 93-320, 88 Stat. 271; Sec. 2, Pub.
L. 98-569, 98 Stat. 2933 (43 U.S.C. 1592(c)).
2. Section 702.20 is revised to read as follows:
Sec. 702.20 Appeals.
The participant may obtain a review, in accordance with the
provisions of 7 CFR part 614 and 7 CFR part 11, of any administrative
decision made under the provisions of this part.
PART 752--WATER BANK PROGRAM
1. The authority citation for part 752 continues to read as
follows:
Authority: Secs. 2-12, 84 Stat. 1468-1471, as amended (16 U.S.C.
1301-1311).
2. Section 752.28 is revised to read as follows:
Sec. 752.28 Appeals.
Any person may obtain review of determinations affecting
participation in this program in accordance with part 614 of this
title.
PART 780--APPEAL REGULATIONS
1. Part 780 is revised to read as follows:
PART 780--APPEAL REGULATIONS
Sec.
780.1 Definitions.
780.2 Applicability.
780.3-5 Reserved.
780.6 Mediation.
780.7 Reconsideration and appeals with the county and State
committees and reconsideration with the regional service offices.
780.8 Time limitations for filing requests for reconsideration or
appeal.
780.9 Appeals of NRCS technical determinations.
780.10 Other finality provisions.
780.11 Reservation of authority.
Authority: 5 U.S.C. 301; 15 U.S.C. 714b and 714c; 16 U.S.C.
590h.
Sec. 780.1 Definitions.
For purposes of this part:
1994 Act means the Federal Crop Insurance Reform and Department of
Agriculture Reorganization Act of 1994 (Public Law 103-354).
Agency means FSA and its county and State committees and their
personnel, CCC, NRCS, FCIC, and any other agency or office of the
Department which the Secretary may designate, or any successor agency.
Appeal means a written request by a participant asking the next
level reviewing authority to review a decision.
CCC means the Commodity Credit Corporation, a wholly owned
Government corporation within the U.S. Department of Agriculture.
County committee means an FSA county or area committee established
in accordance with section 8(b) of the Soil Conservation and Domestic
Allotment Act (16 U.S.C. 590h(b)).
[[Page 67317]]
FCIC means the Federal Crop Insurance Corporation, a wholly owned
Government corporation within the U.S. Department of Agriculture.
Final decision means the program decision rendered by the county or
State committee or the FCIC Regional Service Office upon written
request of the participant. A decision that is otherwise final shall
remain final unless the decision is timely appealed to the State
committee or NAD. A decision of FSA or FCIC made by personnel
subordinate to the county committee is considered ``final'' for the
purpose of appeal to NAD only after that decision has been appealed to
the county committee under the provisions of this part.
FSA means the Farm Service Agency.
NAD means the National Appeals Division, established pursuant to
the 1994 Act.
NAD regulations means the National Appeals Division (NAD) rules of
procedure published by the Secretary at 7 CFR part 11 implementing
title II, subtitle H of the 1994 Act.
NRCS means the Natural Resource Conservation Service of the United
States Department of Agriculture, formerly the Soil Conservation
Service.
Reconsideration is a subsequent consideration of a prior decision
by the same reviewing authority.
Regional Service Office means the regional offices established by
FSA and FCIC for the purpose of making determinations for private
insurance companies reinsured by FCIC under the Federal Crop Insurance
Act and for FSA for insurance contracts delivered through county FSA
offices (including underwriting decisions), the applicability of
provisions under chapter IV of 7 CFR, and decisions as to insurability
and rating of acreage.
Reviewing authority means a person or committee assigned the
responsibility of making a decision on the appeal filed by the
participant in accordance with this part.
State committee means an FSA State committee established in
accordance with section 8(b) of the Soil Conservation and Domestic
Allotment Act (16 U.S.C. 590h(b)) including, where appropriate, the
Director of the Caribbean Area FSA office for Puerto Rico and the
Virgin Islands.
Technical determination of NRCS means a decision by NRCS concerning
the status and condition of the natural resources based on science and
on the best professional judgment of natural resource professionals
within NRCS.
Sec. 780.2 Applicability.
(a)(1) Except as provided in other regulations, this part applies
to decisions made under programs and by agencies, as set forth herein:
(i) Decisions in those domestic programs administered by the Farm
Service Agency (FSA), and programs administered by FSA on behalf of the
Commodity Credit Corporation (CCC) through State and county committees,
which are generally set forth in chapters VII and XIV of this title;
(ii) Technical decisions made by the Natural Resources Conservation
Service (NRCS) under title XII of the Food Security Act of 1985, as
amended;
(iii) Decisions made by personnel of the Federal Crop Insurance
Corporation (``FCIC'') or FSA with respect to contracts of insurance
insured by FCIC and the noninsured crop disaster assistance program;
(iv) Decisions made by personnel of FCIC or FSA with respect to
contracts of insurance provided by private insurance carriers and
reinsured by FCIC under the provisions of the Federal Crop Insurance
Act; and
(v) Other programs to which this part is made applicable by
individual program regulations.
(2) For covered programs, this part is applicable to any decision
made by FSA and its State and county committees, CCC, FCIC, the
personnel and agents of FSA, FCIC, or CCC, and by the officials of NRCS
(to the extent provided in Sec. 780.9), except as otherwise may be
provided in individual program requirements or by the Secretary.
(3) This part is not applicable to any decision:
(i) Made by FSA or FCIC with respect to any matter arising under
the terms of the Standard Reinsurance Agreement between FCIC and any
private insurance company reinsured by FCIC under the provisions of the
Federal Crop Insurance Act, as amended; or
(ii) Made by any private insurance company with respect to any
contract of insurance issued to any producer by the private insurance
company and reinsured by FCIC under the provisions of the Federal Crop
Insurance Act, as amended. Those insurance contracts are subject to
dispute resolution through arbitration or mediation in accordance with
the contract terms.
(b) With respect to matters identified in paragraph (a) of this
section, participants may request reconsideration or appeal, under the
provisions of this part, of decisions by an agency made with respect
to:
(1) Denial of participation in a program;
(2) Compliance with program requirements;
(3) Issuance of payments or other program benefits to a participant
in a program;
(4) Making payments or other benefits to an individual or entity
who is not a participant in a program; or
(5) Technical determinations by NRCS.
(c) No reconsideration or appeal may be sought under this part of
any general program provision or program policy, or any statutory or
regulatory requirement that is applicable to all similarly situated
participants.
(d) Mathematical formulas established under a statute or program
regulations, and decisions based solely on the application of those
formulas, are not appealable under this part.
(e) Only a participant may seek reconsideration or appeal under
this part.
Sec. Sec. 780.3-780.5 [Reserved]
Sec. 780.6 Mediation.
Participants have the right to seek mediation involving any
decision appealed under this part in accordance with the provisions of
section 282 of the 1994 Act, if the mediation program of the State
where the participant's farming operation giving rise to the decision
is located has been certified by the Secretary for the program involved
in the agency decision. Any time limitation for review contained in
this part will be stayed pending timely pursuit and completion of the
mediation process.
Sec. 780.7 Reconsideration and appeals with the county and State
committees and reconsideration with the regional service offices.
(a) A participant may appeal a decision of personnel subordinate to
the county committee by filing with the county committee a written
request for appeal that states the basis upon which the participant
relies to show that:
(1) The decision was not proper and not made in accordance with
applicable program policies; or
(2) All material facts were not properly considered in such
decision.
(b) A participant may seek reconsideration of a final decision by a
county committee or the Regional Service Office by filing a written
request for reconsideration with the county committee or the Regional
Service Office that states the basis upon which the participant relies
to show that:
(1) The decision was not proper and not made in accordance with
applicable program regulations; or
(2) All material facts were not properly considered in such
decision.
[[Page 67318]]
(c) A participant may appeal a final decision by a county committee
or the Regional Service Office to the State committee and request an
informal hearing in connection therewith, by filing a written appeal
with the State committee.
(d) A participant may seek reconsideration of a decision by a State
committee, and request an informal hearing in connection therewith, by
filing a written request for reconsideration with the State committee
that states the basis upon which the participant relies to show that:
(1) The decision was not proper and not made in accordance with
applicable program regulations; or
(2) All material facts were not properly considered in such
decision.
(e) Nothing in this part prohibits a participant from filing an
appeal of a final decision of the county committee or the Regional
Service Office with NAD in accordance with the NAD regulations.
(f) This section does not apply to a technical determination by
NRCS. Procedures regarding the appeal of a technical determination by
NRCS are contained in Sec. 780.9.
Sec. 780.8 Time limitations for filing requests for reconsideration or
appeal.
(a) A request for reconsideration or an appeal of a decision shall
be filed within 30 days after written notice of the decision which is
the subject of the request is mailed or otherwise made available to the
participant. A request for reconsideration or appeal shall be
considered to have been ``filed'' when personally delivered in writing
to the appropriate reviewing authority or when the properly addressed
request, postage paid, is postmarked. A decision shall become final and
non-reviewable unless reconsideration is timely sought or the decision
is timely appealed.
(b) A request for reconsideration or appeal may be accepted and
acted upon even though it is not filed within the time prescribed in
paragraph (a) of this section if, in the judgment of the reviewing
authority with whom such request is filed, the circumstances warrant
such action.
Sec. 780.9 Appeals of NRCS technical determinations.
(a) Notwithstanding any other provision of this part, a technical
determination of NRCS issued to a participant pursuant to Title XII of
the Food Security Act of 1985, as amended, including wetland
determinations, may be appealed to a county committee in accordance
with the procedures in this part.
(b) If the county committee hears the appeal and agrees with the
participant's appeal, the county committee shall refer the case with
its findings to the NRCS State Conservationist to review the matter and
review the technical determination. The County or State committee
decision shall incorporate, and be based upon, the NRCS State
Conservationist's technical determination.
Sec. 780.10 Other finality provisions.
The finality provisions contained in section 281 of the 1994 Act
shall be applied to appeals under this part to the extent provided for
in that section of the 1994 Act.
Sec. 780.11 Reservations of authority.
(a) Representatives of FSA, FCIC, and CCC may correct all errors in
entering data on program contracts, loan agreements, and other program
documents and the results of the computations or calculations made
pursuant to the contract or agreement.
(b) Nothing contained in this part shall preclude the Secretary, or
the Administrator of FSA, Executive Vice President of CCC, the Manager
of FCIC, the Chief of NRCS, if applicable, or a designee, from
determining at any time any question arising under the programs within
their respective authority or from reversing or modifying any decision
made by FSA or its county and State committees, FCIC, or CCC.
PART 781--DISCLOSURE OF FOREIGN INVESTMENT IN AGRICULTURAL LAND
1. The authority citation for part 781 continues to read as
follows:
Authority: Sec. 1-10, 92 Stat. 1266 (7 U.S.C. 3501 et seq.).
2. In Sec. 781.5 paragraphs (c), (d) and (e) are removed,
paragraphs (f) through (h) are redesignated as paragraphs (d) through
(f) respectively, and paragraph (b)(3) is revised and a new paragraph
(c) is added to read as follows:
Sec. 781.5 Penalty review procedure.
* * * * *
(b) * * *
(3) A request for a hearing on the proposed penalty may be filed in
accordance with part 780 of this title.
(c) After a final decision is issued pursuant to an appeal under
part 780 of this title, the Administrator or Administrator's designee
shall mail the foreign person a notice of the determination on appeal,
stating whether a report must be filed or amended in compliance with
Sec. 781.3, the amount of the penalty (if any), and the date by which
it must be paid. The foreign person shall file or amend the report as
required by the Administrator. The penalty in the amount stated shall
be paid by check or money order drawn to the Treasurer of the United
States and shall be mailed to the United States Department of
Agriculture, P.O. Box 2415, Washington, DC 20013. The Department is not
responsible for the loss of currency sent through the mails.
* * * * *
PART 1900--GENERAL
1. The authority for part 1900 is revised to read as follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 1989; 7 U.S.C. 6991, et. seq.;
42 U.S.C. 1480; Reorganization Plan No. 2 of 1953 (5 U.S.C. App.).
2-3. Subpart B is revised to read as follows:
Subpart B--Adverse Decisions and Administrative Appeals
1900.51 Definitions.
1900.52 General.
1900.53 Applicability.
1900.54 Effect on assistance pending appeal.
1900.55 Adverse action procedures.
1900.56 Non-appealable decisions.
1900.57 [Reserved].
* * * * *
Sec. 1900.51 Definitions.
Act means the Federal Crop Insurance Reform and Department of
Agriculture Reorganization Act of 1994, Public Law No. 103-354 (7
U.S.C. 6991 et seq.).
Agency means the Rural Utilities Service (RUS), the Rural Housing
Service (RHS), and the Rural Business-Cooperative Development Service
(RBS), or their successor agencies.
Refer to 7 CFR 11.1 for other definitions applicable to appeals of
adverse decisions covered by this subpart.
Sec. 1900.52 General.
This subpart specifies procedures for use by USDA personnel and
program participants to ensure that full and complete consideration is
given to program participants who are affected by an agency adverse
decision.
Sec. 1900.53 Applicability.
(a) Appeals of adverse decisions covered by this subpart will be
governed by 7 CFR part 11.
(b) The provisions of this subpart apply to adverse decisions
concerning direct loans, loan guarantees, and grants under the
following programs: RUS Water and Waste Disposal Facility Loans and
Grants Program; RHS Housing and Community Facilities Loan
[[Page 67319]]
Programs; RBS Loan, Grant, and Guarantee Programs and the Intermediary
Relending Program; and determinations of the Rural Housing Trust 1987-1
Master Servicer.
(c) This subpart does not apply to decisions made by parties
outside an agency even when those decisions are used as a basis for
decisions falling within paragraph (b) of this section, for example:
decisions by state governmental construction standards-setting agencies
(which may determine whether RHS will finance certain houses); Davis-
Bacon wage rates; flood plain determinations; archaeological and
historical areas preservation requirements; and designations of areas
inhabited by endangered species.
Sec. 1900.54 Effect on assistance pending appeal.
(a) Assistance will not be discontinued pending the outcome of an
appeal of a complete or partial adverse decision.
(b) Notwithstanding the provisions of paragraph (a) of this
section, administrative offsets initiated under subpart C of part 1951
will not be stayed pending the outcome of an appeal and any further
review of the decision to initiate the offset.
Sec. 1900.55 Adverse action procedures.
(a) If an applicant, guaranteed lender, a holder, borrower or
grantee is adversely affected by a decision covered by this subpart,
the decision maker will inform the participant of the adverse decision
and whether the adverse decision is appealable. A participant has the
right to request the Director of NAD to review the agency's finding of
nonappealability in accordance with 7 CFR 11.6(a). In cases where the
adverse decision is based on both appealable and nonappealable actions,
the adverse action is not appealable.
(b) A participant affected by an adverse decision of an agency is
entitled under section 275 of the Act to an opportunity for a separate
informal meeting with the agency before commencing an appeal to NAD
under 7 CFR part 11.
(c) Participants also have the right under section 275 of the Act
to seek mediation involving any adverse decision appealable under this
subpart if the mediation program of the State in which the
participant's farming operation giving rise to the decision is located
has been certified by the Secretary for the program involved in the
decision. An agency shall cooperate in such mediation. Any time
limitation for appeal will be stayed pending completion of the
mediation process (7 CFR 11.5(c)).
Sec. 1900.56 Non-appealable decisions.
The following are examples of decisions which are not appealable:
(a) Decisions which do not fall within the scope of this subpart as
set out in Sec. 1900.53.
(b) Decisions that do not meet the definition of an ``adverse
decision'' under 7 CFR part 11.
(c) Decisions involving parties who do not meet the definition of
``participant'' under 7 CFR part 11.
(d) Decisions with subject matters not covered by 7 CFR part 11.
(e) Interest rates as set forth in agency procedures, except for
appeals alleging application of an incorrect interest rate.
(f) The State RECD Director's refusal to request an administrative
waiver provided for in agency program regulations.
(g) Denials of assistance due to lack of funds or authority to
guarantee.
Sec. 1900.57 [Reserved]
Done at Washington, D.C., this 21st day of December, 1995.
Dan Glickman,
Secretary of Agriculture.
[FR Doc. 95-31397 Filed 12-28-95; 8:45 am]
BILLING CODE 3410-01-P