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Appeal Procedures
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: May 16, 2006 (Volume 71, Number 94)]
[Rules and Regulations]
[Page 28239-28248]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16my06-2]
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DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
7 CFR Part 614
RIN 0578-AA16
Appeal Procedures
AGENCY: Natural Resources Conservation Service.
ACTION: Interim final rule with request for comments.
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SUMMARY: The Natural Resources Conservation Service (NRCS), United
States Department of Agriculture (USDA) issues this interim final rule
amending NRCS's informal appeals procedures as required by Title II of
the Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994, 7 U.S.C. 6991 et seq. (the 1994 Act). This
interim final rule amends regulations promulgated by the interim final
regulations published by the Secretary of Agriculture for NRCS on
December 29, 1995 (60 FR 67313), and also includes new language to
address statutory changes and make procedural and structural changes.
Because of the substantive changes the agency is making to its informal
appeal process under the current regulation, NRCS is publishing this
rule as an interim final rule with request for comments.
NRCS has determined that issuing an interim final rule with request
for comments rather than a proposed rule was justified in order to
implement the changes required by statute as well as to institute
procedural improvements. This interim final rule with request for
comments puts the public on notice of the changes being made while
affording an opportunity to comment. At the same time, much needed
changes and improvements to the current regulation may be implemented
immediately thereby better serving the public and the USDA.
DATES: Effective Date: May 16, 2006. Comments must be received by June
15, 2006.
NRCS invites interested persons to submit comments on this interim
final rule. Comments may be submitted by any of the following methods:
Mail: Send comments to: Beth Schuler, Natural Resources Conservation
Service, 1400 Independence Avenue, SW., 103, Washington, DC 20250, or
E-Mail: Send comments to beth.schuler@wdc.usda.gov. You may also submit
comments via facsimile transmission to: (615) 673-6705; or through the
Federal eRulemaking Portal: Go to http://www.regulations.gov 
.
Follow the online instructions for submitting comments.
ADDRESSES: This interim final rule can be accessed via the internet.
Users can access the NRCS homepage at:
http://www.nrcs.usda.gov/programs/appeals/interimfinalrule.
FOR FURTHER INFORMATION CONTACT: Beth A. Schuler, Conservation Planning
and Technical Assistance Division, Room 6015-S, 1400 Independence Ave,
SW., 103, Washington, DC 20250. Telephone: (615) 646-9741; E-mail:
beth.schuler@wdc.usda.gov. Persons with disabilities who require
alternative means for communication (Braille, large print, audio tape,
etc.) should contact the USDA Target Center at (202) 720-2600 (voice
and TDD).
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This interim final rule has been determined to be not significant under
[[Page 28240]]
Executive Order 12866 and has not been reviewed by the Office of
Management and Budget (OMB).
Paperwork Reduction Act of 1995
This rule does not constitute a collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 35).
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
establishes requirements for Federal agencies to assess the effects of
their regulatory actions on State, local, and Tribal governments and
the private sector. This rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, and
Tribal governments or the private sector. Therefore, this rule is not
subject to the requirements of sections 202 and 205 of the UMRA.
Executive Order 13132
It has been determined under Executive Order 13132, Federalism,
that this rule does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment. The provisions
contained in this rule will not have a substantial direct effect on
States or their political subdivisions or on the distribution of power
and responsibilities among the various levels of government.
Regulatory Flexibility Act
This regulation will not have a significant economic impact on a
substantial number of small entities. This action does not increase the
burden on any entity, or the costs to any small business to comply with
these regulations, because it merely clarifies and establishes
procedures for participants to use in filing appeals of adverse
decisions. Therefore, this action is determined to be exempt from the
provisions of the Regulatory Flexibility Act (5 U.S.C. 605) and no
Regulatory Flexibility Analysis was prepared.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. The provisions of this rule are not retroactive. The
provisions of this rule preempt State and local laws to the extent such
State and local laws are inconsistent. The administrative appeal
provisions published at 7 CFR part 11 must be exhausted before any
action for judicial review may be brought against NRCS.
Environmental Evaluation
The environmental impacts of this rule have been considered in
accordance with the provisions of the National Environmental Policy Act
of 1969 (NEPA), 42 U.S.C. 4321 et seq., and NRCS has concluded that
promulgation of this rule is categorically excluded from NEPA's
requirement from an environmental impact analysis under the Department
of Agriculture regulations, 7 CFR 1b.3(a)(1). Actions implemented under
this rule fall in the category of policy development, planning and
implementation which relates to routine activities and similar
administrative functions and no circumstances exist that would require
preparation of an environmental assessment or environmental impact
statement.
Executive Order 12372
This regulation is not subject to the provisions of Executive Order
12372, which require intergovernmental consultation with State and
local officials. See the notice related to 7 CFR part 3015, subpart V,
published June 24, 1983 (48 FR 29115).
Government Paperwork Elimination Act
NRCS is committed to compliance with the Government Paperwork
Elimination Act as well as continued pursuit of providing all services
electronically when practicable. This rule requires that a participant
must make a written request to appeal a determination or decision
issued to a participant for a program administered by NRCS. In part,
the procedures in this rule lend themselves to electronic request and
submission. NRCS will pursue, either solely or jointly with the Farm
Service Agency, with whom NRCS shares some appeal procedures, 7 CFR
part 780, the development of an application that will allow program
participants to request an appeal online. It will also enable both FSA
and NRCS to manage the requests and reporting aspects electronically.
Background and Purpose
On December 29, 1995, the Secretary of Agriculture published an
interim final rule for the National Appeals Division (NAD) to implement
Title II, Subtitle H of the 1994 Act, which rule established interim
procedures, at 7 CFR part 11, for appeals of adverse decisions by USDA
agency officials to the NAD (60 FR 67298). The interim final rule also
included conforming changes relating to regulations governing agency
informal appeals, including part 614. NAD published its final rule in
the Federal Register on June 23, 1999 (64 FR 33367). At that time, it
was expressly noted that the final rule for NAD did not include rules
for agency appeal procedures and that those rules would be published
separately by the respective agencies.
Section 275 of the 1994 Act, 7 U.S.C. 6995, requires USDA agencies
to hold informal hearings at the request of a participant for the
decisions they render. NRCS interprets the ``informal hearing''
requirement to require the agency to provide an opportunity for
informal appeal at the agency level. This interim final rule amends the
current NRCS appeal procedures as promulgated by the 1995 interim final
rule to better conform to the requirements of the 1994 Act and
subsequent legislation, as well as to make other substantive changes to
clarify and improve the agency's informal appeals process.
NRCS's goal in promulgating these informal appeals procedures is to
facilitate at the agency level the resolution of disputes arising from
adverse technical determinations and program decisions. In contrast to
the appeals process administered by NAD under part 11, NRCS's informal
appeals process establishes several means through which participants
can obtain review by NRCS personnel who have detailed knowledge of
agricultural conservation operations as well as expertise in farm and
ranch management. After a decision rendered by NRCS becomes final,
participants may pursue the appeals processes set forth at 7 CFR part
780 and 7 CFR part 11, as appropriate.
Overview of Informal Appeals Options
Program disputes in NRCS vary in complexity, sums at stake, and
feasibility of resolution. Therefore, the availability of effective,
informal appeal procedures is central to NRCS's goal of achieving just,
speedy, and cost-effective resolutions to program and technical
disputes. Accordingly, this rule sets forth three separate means of
informal appeal: Mediation, reconsideration, and hearing. The text of
the rule provides appeal options in the alternative, meaning a
participant must choose one avenue of appeal. This structure was adopted
in order to facilitate efficient resolution of disputes. The sections
below describe each of the appeal options available to participants.
Mediation: The mediation informal appeal option is available for
both preliminary technical decisions and program decisions. This
rulemaking incorporates additional guidelines that have become a part
of the agency's
[[Page 28241]]
practice over the last several years regarding the use of the mediation
to resolve NRCS program disputes. Under this rule, all mediations will
be conducted by a ``qualified mediator,'' as defined at Sec. 614.2. In
a State that has a USDA certified mediation program, a ``qualified
mediator'' is a person who is accredited as a mediator under relevant
State law. In a State that does not have a USDA certified program, a
``qualified mediator'' is a person who meets certain core knowledge and
training requirements set forth in the definition of the term.
Additionally, this rule clarifies that all mediation requests are to be
submitted to the appropriate State Conservationist, as indicated in the
written decision notice received by the participant.
Under 7 U.S.C. 5103(a)(1)(A), NRCS must participate in good faith
in any State mediation program certified under 7 U.S.C. 5101. NRCS is
applying this good faith requirement to mediation generally, regardless
of whether the dispute is being mediated under a State certified
mediation program. This good faith policy is set forth in this
rulemaking at Sec. 614.11. NRCS demonstrates good faith in mediation
by doing, among other things, the following:
--Designating a person to represent NRCS in mediation;
--Defining the NRCS representative's authority to bind NRCS to
agreements reached in the mediation;
--Instructing NRCS's representative to ensure that any agreement
reached during, or as a result of, the mediation is consistent with the
statutory and regulatory provisions and generally applicable program
policies and is mutually agreed to in writing by all affected parties;
--Authorizing NRCS's representative to assist in identifying and
exploring additional options that may resolve the dispute;
--Assisting, as necessary, in making pertinent records available for
review and discussion during the mediation;
--Directing NRCS's representative in the mediation to forward any
written agreement proposed in mediation to the appropriate NRCS
official for approval; and
--Considering, in a timely manner, dispute resolution proposals
requiring actions or approvals.
The basic issue in mediation of an agency program dispute is
whether one or more parties to the mediation meet program requirements.
Parties mediating a dispute are not free to make their own law or
policy, and mediation is not a means to obtain a result not otherwise
permissible under statute, regulations, or generally applicable agency
policy and program procedure. Within these parameters, mediation of
disputes can produce benefits when the mediation reveals additional
relevant facts and new insights. For example, NRCS program mediation
may result in: identifying alternative means for a participant to
comply with regulatory requirements, exploring alternative mitigation
strategies when a wetland has been converted, or considering possible
changes to a farming operation with regard to compatible uses of
easement acreages. Additionally, when other private parties having an
interest in the issue are involved in the mediation, the mediation may
assist in identifying potential flexibility in the positions of these
private parties which could lead to a more global resolution of the
dispute.
NRCS will endeavor to ensure that the representative designated for
NRCS in any mediation is a person with appropriate knowledge of the
decision-making parameters implicated in the program dispute and who
has the authority to bind the agency. However, in some cases, it may
not be possible to have an agency representative present who has
settlement authority. In those instances, NRCS will designate an NRCS
representative who will be responsible for acting as a liaison to the
authorized NRCS decision-maker and will be responsible for securing
timely consideration of any settlement proposal.
Mediations occurring in the informal appeal process are
confidential with some limited exceptions. For example, during the
course of mediation, it is anticipated that NRCS's representative may
need to communicate with other agency officials such as the deciding
official. At the outset of the mediation, NRCS will outline the other
possible NRCS officials who may need to be contacted in order to
resolve the dispute and seek the concurrence of the other parties to
the mediation for such exceptions to the general rule of
confidentiality. In addition, any mediated final settlement agreement
will not be confidential but will become a part of the official record.
Once a dispute has been settled through an executed settlement
agreement, the participant waives all further appeals as to that issue.
All settlement agreements must be in writing and signed by the parties
with the proper authority.
Reconsideration: Reconsideration is a review by the designated
conservationist or State Conservationist of an NRCS preliminary
technical determination. In contrast to the current regulation, this
rule provides for reconsideration of a preliminary technical
determination in conjunction with the field review. In addition, this
rule establishes a two tiered review process. Specifically, under this
rule, the designated conservationist conducts the field visit,
supplements the agency record, and makes his or her reconsideration
decision within 15 days of the field visit. If the reconsideration
decision is favorable to the participant, then the designated
conservationist issues the reconsideration as the final technical
determination. If the reconsideration decision is still adverse to the
participant, the designated conservationist forwards the
reconsideration decision and the agency record to the State
Conservationist for an independent review and final determination,
unless the participant waives in writing further informal appeal. In
cases of waiver, the designated conservationist issues the
reconsideration decision as the final technical determination.
Otherwise, the State Conservationist's reconsideration decision becomes
the final agency technical determination upon receipt by the
participant. This rule making does not set forth a specified time frame
for the State Conservationist's decision in order to provide needed
flexibility for any additional information gathering that may be
necessary. However, it is the agency's intention that the State
Conservationist's decision will be made as soon as practicable. This is
in keeping with agency's commitment to ensuring an effective and
efficient informal appeals process.
NRCS believes adding reconsideration to the field review process
will improve the accuracy of technical determinations and sufficiency
of the administrative record upon which the technical decision is
based. Both the agency and the participant benefit from this change
because it fosters the best possible technical decisions in accordance
with law and policy and offers the participant a meaningful opportunity
for appeal at the NRCS State level. These changes to the current appeal
rule also ensure that the participant has the option of obtaining an
impartial review of an adverse preliminary technical determination
within the agency by an authority other than the original decision
maker. A decision issued on reconsideration constitutes a final
technical determination in accordance with the regulation at Sec.
614.8, and as such, starts the running of time for any subsequent
appeal to the FSA county committee pursuant to 7 CFR part 780,
[[Page 28242]]
if applicable, or NAD under 7 CFR part 11.
Hearing: The hearing appeal option is available for adverse program
decisions, much like reconsideration is available for technical
determinations. A hearing provides an informal opportunity for a
participant to present testimony and/or documentary evidence before the
appropriate State Conservationist to show why an adverse NRCS program
decision is erroneous and why it should be reversed or how it should be
modified. In this rulemaking, several changes have been made to the
hearing process. First, language has been added to clarify that the
Federal Rules of Evidence do not apply to these hearings. Second, this
rule provides that only verbatim transcripts may serve as official
transcripts of an NRCS hearing. And, lastly, this rule does not include
the right of appeal to NAD which was included at Sec. 614.204(c) in
the current regulation since the participant will likely forgo that
option by appealing to the State Conservationist. In lieu of an NRCS
hearing, a participant may appeal a program decision to the FSA county
committee pursuant to 7 CFR part 780, if it is a conservation program
under Title XII of the Food Security Act of 1985, as amended, (Title
XII) or to NAD pursuant to 7 CFR part 11.
FSA county committee appeals: Pursuant to 7 U.S.C. 6995 and 7 CFR
part 780, a participant may seek an optional informal review by an FSA
county committee of an NRCS final technical determination or program
decision made under Title XII. A participant may also choose to forgo
the FSA county committee appeal option and appeal directly to NAD under
7 CFR part 11.
This rule, at Sec. 614.10, changes the current regulation by
adding the FSA county committee appeal option for Title XII program
decisions. In addition, the actions of the State Conservationist on
remand from the FSA county committee have been changed from permissive
to mandatory in this rule making to ensure uniformity.
Program Decisions and Technical Determinations
This section provides a general overview of technical
determinations and program decisions, which are part of NRCS's program
implementation and administration responsibilities.
Preliminary and final technical determinations are those
determinations by an NRCS official that relates to the condition of the
natural resources and cultural practices based on science and the best
professional judgment of natural resource professionals concerning
soils, water, air, plants, and animals.
A program decision is a decision reached by an NRCS official based
on applicable regulations and program policy. Program decisions may
relate to eligibility for program benefits, compatible use
authorizations, compliance with program requirements, and other
actions. Program decisions may be based on previously issued technical
determinations, such as those program decisions issued by NRCS with
regard to program eligibility, contract status, or practice
installation. A program decision may also be issued solely for the
purpose of program administration, such as a response to a request for
equitable relief.
Non-Appealable Decisions and Determinations
Not all adverse decisions or determinations that affect program
participants are appealable under this part. Section 614.4 provides a
list of the types of decisions that are not appealable. Any notice
transmitting an NRCS program decision or technical determination that
is determined not to be appealable will provide the reason the decision
or determination is not appealable.
For example, program decisions or technical determinations made
pursuant to statutory provisions or regulations that are not dependent
upon a unique set of facts are generally not appealable. Thus, a
decision is not appealable if it is based upon general program policy,
a statutory or regulatory requirement that is applicable to all
similarly situated participants, or technical standards and equations.
In addition, decisions of the NRCS Chief or State Conservationists on
equitable relief made under the regulations implementing section 1613
of the Farm Security and Rural Investment Act of 2002, 7 U.S.C. 7996,
are discretionary decisions that do not afford participants any rights
of appeal within NRCS or any right to judicial review.
This rulemaking includes a new provision, Sec. 614.13, which
affords the participant the opportunity to seek the review of the State
Conservationist of an NRCS decision denying an appeal based upon
appealability. Section 614.13 also informs the participant of the right
to seek an appealability review from NAD.
Section-by-Section Analysis
NRCS is making significant changes to the organization and
substance of the existing informal appeals regulation in order to
address statutory changes and comments received since the 1995 rule
making, as well as to improve the informal appeals process. The
following text describes the changes made to each section of the rule.
Section 614.1 General
This section retains the same designation and remains substantially
the same in content. This section explains the scope and purpose of the
agency's informal appeal regulation.
Section 614.2 Definitions
This section remains the same in designation, but adds several new
definitions and removes a few definitions that appear in the existing
appeal procedures. Specifically, definitions have been added for the
terms ``agency'', ``agency record'', ``appeal'', ``final technical
determination'', ``hearing'', ``mediator'', ``participant'', ``program
decision'', ``qualified mediator'', ``reconsideration'', and ``verbatim
transcript.'' The definitions for ``adverse technical determination''
and ``decision'' have not been included in this rule.
The definitions for ``final technical determination'',
``reconsideration'' and ``program decision'' are added to provide
precision and clarity in the use of those terms. The term ``agency
record'' is defined in order to help improve the agency's decision
making and documentation process. The term ``participant'' is broadly
defined in this rulemaking to mean any individual or entity who has
applied for, or whose right to participate in, a program or receive a
payment or benefit in accordance with any program covered by this
regulation has been affected by an adverse NRCS decision. The term
``participant'' does not include individuals or entities whose disputes
arise under the items excluded in the definition of a participant set
out in the NAD regulations at 7 CFR part 11. The broadening of the
definition of ``participant'' removes the need to also use the term
``landowner'' as was done in the existing appeal regulation.
The term ``qualified mediator'' is provided by this rule so that
there is a clear direction regarding the qualifications required in
order to mediate an NRCS dispute.
The term ``verbatim transcript'' is added as part of agency's new
policy providing that only verbatim transcripts constitute an official
record of a hearing and that recordings are prohibited. This policy
change ensures a uniform, accurate, and fair means of documenting NRCS
hearings. In addition, this policy parallels NAD's policy.
The definition of ``adverse technical determination'' contained in the
[[Page 28243]]
existing appeal regulation is not included here because the meaning of
the term has been adequately covered in the appealability section. The
general term ``decision'' is not included here because the types of
NRCS decisions are more precisely defined in this rule as noted above.
Section 614.3 Applicability of Appeal Procedures
This section sets forth the types of decision that are appealable.
Section 614.3 addresses the applicability of the informal appeal
process contained in sections 614.3, 614.100 and 614.200 of the current
appeal regulation. The effect of this change is to streamline the
regulation by reorganizing the informal appeals procedures based upon
whether a technical determination or a program decision is being appealed.
In addition, since promulgation of the 1995 rule, new programs have
been authorized under Title XII and some programs have been repealed.
Consequently, this section amends the current regulation by updating
the listing of programs to which these informal appeals apply.
Comments have been received on this section concerning FSA review
of adverse NRCS technical determinations made under Title XII program
authorities being limited to technical determinations. The commenters
argued that all decisions, not just technical determinations, made for
those programs authorized under Title XII may be appealed under 7 CFR
part 780. NRCS agrees with these comments. 7 U.S.C. 6932(d) provides
that the ``[u]ntil such time as an adverse decision described in this
paragraph is referred to the National Appeals Division for
consideration, the [Consolidated]
Farm Service Agency shall have
initial jurisdiction over any administrative appeal resulting from an
adverse decision made under title XII of the Food Security Act of 1985
(16 U.S.C. Sec. 3801 et seq.).'' Therefore, in this rulemaking, NRCS
has changed the scope of the FSA county committee review to encompass
all technical determinations and program decisions made under Title XII.
Section 614.4 Decisions Not Subject To Appeal
This section has been renumbered so that it follows directly after
the section dealing with applicability. NRCS has expanded this section
in order to provide additional clarification as to those decisions that
are not subject to appeal. For example, this section adds new language
which provides that the correction of errors on contract and other
program documents by NRCS and the results of computations or calculations
made by NRCS pursuant to the contract or agreement are not appealable.
Section 614.5 Reservation of Authority
This section remains the same in content. However, the number
designation has been changed from Sec. 614.4 so that the two sections
addressing applicability in this rulemaking appear sequentially. Under
this section, the Chief of NRCS, either as the head of the agency or as
the Executive Vice President of CCC, and the Secretary reserve the
authority to determine, at any time, any question arising under
programs within their respective authority or from reversing or modifying
any program decision or technical determination made by NRCS or CCC.
Section 614.6 Agency Records and Decision Notices
This section is new. It sets forth the agency's policy that all
decisions under this part are based upon an agency record. The agency
record is an administrative record comprised of all the documentation,
including reports, maps, photographs, correspondence, etc., that the
decision-maker relied upon when making his or her decision. In
determining which documents are included in the agency record, the
decision-maker will err on the side of inclusiveness. The agency is
responsible for compiling the agency record and maintaining it. A copy
of the agency record is available to the participant upon request. The
completeness of the agency record, as well as the consideration of all
relevant facts, is critical to an effective appeal process.
Consequently, development of the agency record is being emphasized in
this rulemaking.
This section also sets forth agency policy on decision notices,
including content, deadlines, and methods of delivery. Specifically,
NRCS policy requires that an adverse program decision or technical
determination must: (1) Be in writing, (2) set forth its factual basis,
and (3) explain its application of relevant statue, regulations, and
policy. NRCS must send written notice of its decision to the
participant via certified mail, return receipt requested, or hand
delivery within 10 working days of rendering a technical determination
or program decision. In this regard, this section conforms to section
6994 of the 1994 Act, which requires that the Secretary provide written
notice of an adverse decision and notice of appeal rights no later than
10 working days after the decision is made.
Section 614.7 Preliminary Technical Determinations
This section was designated as Subpart B, Section 614.101--Notice
of Preliminary Technical Determinations in the current appeal
regulation. As described earlier in this preamble, two substantive
changes are being made to this section. One change is that the field
review appeal option is now combined with a reconsideration
determination by either the designated conservationist or the State
Conservationist. The other change is that the participant now has the
option of waiving in writing the appeal process for the purpose of
immediately implementing any actions required by NRCS.
In addition, in the current regulation, preliminary technical
determinations include only those initial written technical
determinations provided to a USDA program participant for the programs
authorized under Title XII. However, NRCS also makes technical
determinations for non-Title XII conservation programs. Consequently,
NRCS is amending the regulation so that all technical determinations
issued by the agency, regardless of statutory authority, will be issued
first as a preliminary technical determination with appeal rights as
set forth in this section. NRCS is making this change, in part, by
eliminating the subpart structure which was organized around Title XII
and non-Title XII decisions.
Comments have been received concerning whether waiting 30 days for
a preliminary technical determination to become final prior to being
able to appeal to the FSA county committee or to NAD is timely program
administration. Given the technical nature of these types of agency
decisions, the agency's experience is that issuing the technical
decision as preliminary and then affording an adequate informal appeal
process at the agency level where such expertise resides is essential
to effective program administration. Consequently, the agency is making
no significant changes to the regulation as a result of these comments.
However, for those participants who want a final technical
determination so that they may begin required actions as determined by
NRCS (e.g., wetland restoration), NRCS is providing at Sec. 614.7(d) a
new option to waive appeal.
Section 614.8 Final Technical Determinations
This section was designated in the current regulation as Sec.
614.103--Final
[[Page 28244]]
Determinations. This section sets forth when technical determinations
become final and the appeals procedures available. The content of this
section remains similar to the current regulation. However, changes are
being made to address finality for reconsideration appeals, to remove
subsection (b), and to set forth the available appeal options.
Concern has been raised that participants should be advised of the
basis for the technical determination (or program decision), as well as
the procedure to be utilized to pursue review or appeal at the time of
the notification of the preliminary technical determination.
NRCS notes that this type of requirement was generally addressed at
Sec. 614.103(b) in the current regulation. However, NRCS agrees with
this concern and, as previously discussed, has included guidance in
this rulemaking at Sec. 614.7 ``Agency records and decision notices.''
In addition, NRCS has included further guidance regarding notification
as part of the NRCS Appeals and Mediation policy document, Conservation
Programs Manual, Part 510, Appeals and Mediation, (440-V-CPM).
Section 614.9 Program Decisions
This section sets forth the informal appeals procedures available
for program decisions which were originally contained in subpart C of
the current regulation. Program decisions are decisions issued for
conservation programs administered by NRCS which relate to the
administration of a conservation program. Unlike technical
determinations, program decisions are issued as `final decisions'
meaning they may be appealed directly to NAD or the FSA county
committee, if the program decision is made under a Title XII program.
The informal appeals options provided in this section are similar
to those provided in the current regulation with three exceptions.
First, language is included that addresses appeal to the FSA county
committee for Title XII decisions. Second, Sec. 614.203(b)(3) in the
current regulation, which provided that the State Conservationist has
up to 30 days to render a final decision if no mediated settlement has
been reached, is not included in this rule making. This is consistent
with the structure of informal appeal options set forth for technical
determinations and makes sense given that the informal appeal options
for an adverse program decisions are in the alternative, that is,
participants choose either mediation or a hearing. Third, this section
now provides a clear deadline within which the State Conservationist
must render his or her opinion after the hearing.
Section 614.10 Appeals Before the Farm Service Agency County Committee
This section was designated as subpart B, Sec. 614.104, Appeals of
technical determinations, in the current regulation. The agency is
changing the title of this section to ``Appeals before the Farm Service
Agency county committee'' because both program and technical appeals
may be appealed to the FSA county committee. Likewise, this section
provides that technical determinations and program decisions made under
Title XII may be appealed to the FSA county committee.
NRCS is also clarifying the appeal options available to
participants for those programs authorized under Title XII. NRCS had
initially interpreted 7 U.S.C. 6932 as mandating an informal appeal
hearing before the county or area FSA committee of all Title XII
conservation program technical determinations before a determination
could be appealed to NAD. This rule corrects that misinterpretation by
providing that appeal of Title XII decisions to the FSA county
committees by the participant is optional and that a participant may
appeal directly to NAD once a decision is final.
Finally, in contrast to the current regulation, this section makes
mandatory the steps a State Conservationist takes if the FSA county
committee requests the State Conservationist's review. This change is
being made to ensure completeness of the agency record and uniformity
in the appeals process.
Section 614.11 Mediation
This section encompasses those sections designated as Sec.
614.102--Mediation of preliminary technical determinations and Sec.
614.203--Mediation of adverse final decisions in the current regulation
by setting forth agency policy regarding mediation for both preliminary
technical decisions and program decisions. In addition to the
organizational change, new policy is added to address the requirements
for mediation in good faith, confidentiality, and mediator impartiality.
NRCS has removed the reference to ``qualified members of a local
conservation district'' as a source of mediators because of its
ambiguity. The new language provides that, in those states without a
certified State Mediation Program, qualified mediators will be
provided, when available, through a request by the participant to NRCS.
Section 614.12 Transcripts
This new section is added to provide uniform policy regarding how
participants may obtain official transcripts of hearings before the
State Conservationist under Sec. 614.9. Only official transcripts will
become a part of the agency record. This provision is similar to NAD's
policy regarding transcripts as set forth in 7 CFR part 11.
Section 614.13 Appealability Review
This section of the rule is new and provides the participant with
the option of seeking review by the appropriate State Conservationist
of a decision to deny an appeal based upon appealability. The
participant may choose to forgo this informal review option and seek
the review of NAD under 7 CFR part 11.
Section 614.14 Computation of Time
This is a new section added to address computation of deadlines
under this rule as part of the agency's efforts to clarify and improve
the informal appeals process.
Section 614.15 Implementation of Final Agency Decisions
This is a new provision addressing implementation of final USDA
decisions. This provision is similar to the decision implementation
requirement set forth in the NAD rules of appeal. An NRCS decision must
be implemented within 30 days after the agency decision becomes a final
USDA decision. A program decision or technical determination becomes a
final USDA decision when a participant allows the time to request
appeal to expire without appealing the decision. Implementation of a
final USDA decision must be initiated by the agency within the required
period, but does not necessarily have to be completed within the 30 day
period. For example, additional time may be required to obtain updated
financial or other information relating to eligibility or feasibility,
to obtain a new appraisal, or to reassess the wetland features on a
tract of farmland.
Whether the final decision is implemented by NRCS may depend upon
the availability of funds. If funds are not available, a final decision
on appeal will not cause a payment to be issued immediately to a
participant, notwithstanding a successful appeal. However, in such
circumstances, the appeal is still an effective resolution of the
issues related to the participant's compliance with the appealed
program requirements. If funds later become available, and a participant's
[[Page 28245]]
circumstances remain unchanged, NRCS may make payment.
Section 614.16 Participation of Third Parties in NRCS Proceedings
This is a new section which parallels a similar provision in the
NAD appeal regulations. This section provides that NRCS may invite
third parties whose interests may be affected in the informal appeals
process to join as a party to the appeal.
Section 614.17 Judicial Review
This section is new and was added to address when an NRCS
participant can bring action in a court of competent jurisdiction
against NRCS for disputes covered by this part. This section parallels
the provision for judicial review contained in the NAD regulations at 7
CFR part 11.
List of Subjects in 7 CFR Part 614
Administrative practice and procedure, Agriculture, Agriculture
commodities, Alternative Dispute Resolution, Appeal, Conservation
programs, Contracts, Decisions, Determinations, Easements, Farmers,
Farmland, Mediation, Soil conservation.
? Accordingly, the regulations found at 7 CFR part 614 are revised in
their entirety as follows:
PART 614--NRCS APPEAL PROCEDURES
Sec.
614.1 General.
614.2 Definitions.
614.3 Decisions subject to informal appeal procedures.
614.4 Decisions not subject to appeal.
614.5 Reservation of authority.
614.6 Agency records and decision notices.
614.7 Preliminary technical determinations.
614.8 Final technical determinations.
614.9 Program decisions.
614.10 Appeals before the Farm Service Agency county committee.
614.11 Mediation.
614.12 Transcripts.
614.13 Appealability review.
614.14 Computation of time.
614.15 Implementation of final agency decisions.
614.16 Participation of third parties in NRCS proceedings.
614.17 Judicial review.
Authority: 5 U.S.C. 301; 7 U.S.C. 6932 and 6995; and 16 U.S.C. 3822(a).
Sec. 614.1 General.
This part sets forth the informal appeal procedures under which a
participant may appeal adverse technical determinations or program
decisions made by officials of the Natural Resources Conservation
Service (NRCS), an agency under the United States Department of
Agriculture (USDA). These regulations reflect NRCS policy to resolve at
the agency level, to the greatest extent possible, disputes arising
from adverse technical determinations and program decisions made by
NRCS. Once a decision is rendered final by NRCS, participants may
appeal to the National Appeals Division (NAD) as provided for under 7
CFR part 11, or the FSA county committee pursuant to 7 CFR part 780 for
decisions rendered under Title XII of the Food Security Act of 1985, as
amended, 16 U.S.C. 3801 et seq. (Title XII).
Sec. 614.2 Definitions.
The following definitions are applicable for the purposes of this part:
(a) Agency means NRCS and its personnel.
(b) Agency record means all documents and materials, including
documents submitted by the participant and those generated by NRCS,
upon which the agency bases its program decision or technical
determination. NRCS maintains the agency record and will, upon request,
make available a copy of the agency record to the participant(s)
involved in the dispute.
(c) Appeal means a written request by a participant asking for
review (including mediation) of an adverse NRCS technical determination
or program decision under this part. An appeal must set out the
reason(s) for appeal and include any supporting documentation. An
appeal is considered filed when it is received by the appropriate NRCS
official as indicated in the decision notice.
(d) Chief means the Chief of NRCS or his or her designee.
(e) Commodity Credit Corporation (CCC) means a wholly owned
Government corporation within USDA.
(f) Conservation district means any district or unit of State or
local government developed under State law for the express purpose of
developing and carrying out a local soil and water conservation
program. Such district or unit of government may be referred to as a
conservation district, soil and water conservation district, natural
resource district, conservation committee, or similar name.
(g) 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)).
(h) 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.
(i) Final technical determination means a decision by NRCS
concerning the status and condition of the natural resources and
cultural practices based on science and best professional judgment of
natural resource professionals concerning soils, water, air, plants,
and animals that has become final through the informal appeal process,
the expiration of the time period to appeal, or waiver of the appeal
process.
(j) Hearing means an informal appeal proceeding that affords a
participant opportunity to present testimony and documentary evidence
to show why an adverse program decision is in error and why the adverse
decision should be reversed or modified.
(k) Mediation means a process in which a neutral third party, the
mediator, meets with the disputing parties, usually the participant and
the agency. Through mediation, the parties have the opportunity to work
together with the assistance of the mediator to: Improve
communications, understand the relevant issues, develop and explore
alternatives, and reach a mutually satisfactory resolution.
(l) Mediator means a neutral third party who serves as an impartial
facilitator between two or more disputants to assist them in resolving
a dispute. The mediator does not take sides or render decisions on the
merits of the dispute. The mediator assists the parties in identifying
areas of agreement and encourages the parties to explore potential
options toward resolution.
(m) Participant means any individual or entity who has applied for,
or whose right to participate in or receive, a payment or other benefit
in accordance with any program administered by NRCS to which the
regulations in this part apply is affected by a decision of NRCS. The
term does not include those individuals or entities excluded in the
definition of participant published at 7 CFR 11.1.
(n) Preliminary technical determination means the initial written
decision by NRCS on a technical matter concerning the status and
condition of the natural resources and cultural practices based on
science and best professional judgment of natural resources
professionals concerning soils, water, air, plants and animals, which
has not become final under this part.
(o) Program decision means a written decision by NRCS concerning
eligibility for program benefits, program administration or program
[[Page 28246]]
implementation and based upon applicable regulations and program
instructions. Program decisions are issued as final decisions.
(p) Qualified mediator means a mediator who is accredited under
State law in those States that have a mediation program certified by
the USDA pursuant to 7 CFR part 785, or, in those States that do not
have a mediation program certified by the USDA, an individual who has
attended a minimum of 40 hours of core mediator knowledge and skills
training and, to remain in a qualified mediator status, completes a
minimum of 20 hours of additional training or education during each 2-
year period. Such training or education must be approved by USDA, by an
accredited college or university, or by one of the following
organizations: State Bar, a State mediation association, a State approved
mediation program, or a society of dispute resolution professionals.
(q) Reconsideration means a subsequent consideration of a
preliminary technical determination by the designated conservationist
or the State Conservationist.
(r) Secretary means the Secretary of Agriculture.
(s) State Conservationist means the NRCS official, or his or her
designee, in charge of NRCS operations within a State.
(t) Title XII means Title XII of the Food Security Act of 1985, as
amended, 16 U.S.C. 3801 et seq.
(u) Verbatim transcript means the official, written record of
proceedings of a hearing of an adverse program decision appealable
under this part.
Sec. 614.3 Decisions subject to informal appeal procedures.
(a) This part applies to NRCS adverse program decisions and
technical determinations made with respect to:
(1) Conservation programs and regulatory requirements authorized
under Title XII, including:
(i) Conservation Security Program;
(ii) Conservation Reserve Program and the Conservation Reserve
Enhancement Program;
(iii) Environmental Quality Incentives Program;
(iv) Farm and Ranch Lands Protection Program;
(v) Grassland Reserve Program;
(vi) Highly Erodible Land Conservation;
(vii) Wetland Conservation;
(viii) Wetlands Reserve Program;
(ix) Wildlife Habitat Incentives Program; and
(x) Conservation Innovation Grants.
(2) Non-Title XII conservation programs or provisions, including:
(i) Agriculture Management Assistance Program;
(ii) Emergency Watershed Protection Program;
(iii) Soil and Water Conservation Program;
(iv) Water Bank Program;
(v) Watershed Protection and Flood Prevention Program; and
(vi) Healthy Forest Reserve Program.
(3) Any other program to which this part is made applicable.
(b) With respect to matters identified in paragraph (a) of this
section, participants may appeal adverse decisions concerning:
(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) Technical determinations made under Title XII;
(5) Technical determinations or program decisions that affect a
participant's eligibility for USDA program benefits;
(6) The failure of an official of NRCS to issue a technical
determination or program decision subject to this part; and
(7) Incorrect application of general policies, statutory or
regulatory requirements.
(c) Only a participant directly affected by a program decision or a
technical determination made by NRCS may invoke the informal appeal
procedures contained in this part.
(d) Appeals of adverse final technical determinations and program
decisions subject to this part are also covered by the NAD rules of
procedure, set forth at 7 CFR part 11, and by the FSA county committee
appeals process, set forth at 7 CFR part 780, for informal appeals of
Title XII decisions.
Sec. 614.4 Decisions not subject to appeal.
(a) Decisions that are not appealable under this part include:
(1) Any general program provision, program policy, or any statutory
or regulatory requirement that is applicable to all similarly situated
participants, such as:
(i) Program application ranking criteria;
(ii) Program application screening criteria
(iii) Published soil surveys; or
(iv) Conservation practice technical standards included in the
local field office technical guide or the electronic FOTG (eFOTG).
(2) Mathematical or scientific formulas established under a statute
or program regulation and a program decision or technical determination
based solely on the application of those formulas;
(3) Decisions made pursuant to statutory provisions or implementing
regulations that expressly make agency program decisions or technical
determinations final;
(4) Decisions on equitable relief made by a State Conservationist
or the Chief pursuant to Section 1613 of the Farm Security and rural
Investment Act of 2002, 7 U.S.C. 7996;
(5) Disapproval or denials of assistance due to lack of funding or
lack of authority;
(6) Decisions that are based on technical information provided by
another federal or State agency, e.g., lists of endangered and
threatened species; or
(7) Corrections by NRCS of errors in data entered on program contracts,
easement documents, loan agreements, and other program documents.
(b) Complaints involving discrimination in program delivery are not
appealable under this part and are handled under the existing USDA
civil rights rules and regulations.
(c) Appeals related to contractual issues that are subject to the
jurisdiction of the Agriculture Board of Contract Appeals are not
appealable under the procedures within this part.
(d) Enforcement actions under conservation easement programs
administered by NRCS.
Sec. 614.5 Reservation of authority.
The Secretary of Agriculture, the Chief of NRCS, if applicable, or
a designee, reserve the right to make a determination at any time on
any question arising under the programs covered under this part within
their respective authority, including reversing or modifying in
writing, with sufficient reason given therefore, any decision or
technical determination made by an NRCS official.
Sec. 614.6 Agency records and decision notices.
(a) All NRCS decisions under this part are based upon an agency
record. NRCS will supplement the agency record, as appropriate, during
the informal appeals process.
(b) NRCS notifies participants of the agency's preliminary and
final technical determinations and program decisions through decision
notices. By certified mail return receipt requested, NRCS will send to
the participant a decision notice within 10 working days of rendering a
technical determination or program decision. In lieu of certified
[[Page 28247]]
mail, NRCS may hand deliver notices to participants with written
acknowledgment of delivery by the participant. Each decision notice
contains the following:
(1) The factual basis for the technical determination or program;
(2) The regulatory, statutory, and/or policy basis for the
technical determination or program decision; and
(3) Information regarding any informal appeal rights available
under this part; the process for requesting such appeal; and the
procedure for requesting further review before the FSA county committee
pursuant to 7 CFR 780 or NAD pursuant to 7 CFR part 11, if applicable.
Sec. 614.7 Preliminary technical determinations.
(a) A preliminary technical determination becomes final 30 days
after the participant receives the decision, unless the participant
files an appeal with the appropriate NRCS official as indicated in the
decision notice requesting:
(1) Reconsideration with a field visit in accordance with
paragraphs (b) and (c) of this section; or
(2) Mediation as set forth in Sec. 614.11.
(b) If the participant requests reconsideration with a field visit,
the designated conservationist, participant, and, at the option of the
conservation district, a district representative will visit the subject
site for the purpose of gathering additional information and discussing
the facts relating to the preliminary technical determination. The
participant may also provide any additional documentation to the
designated conservationist. Within 15 days of the field visit, the
designated conservationist, based upon the agency record as
supplemented by the field visit and any participant submissions, will
reconsider his or her preliminary technical determination. If the
reconsidered determination is no longer adverse to the participant, the
designated conservationist issues the reconsidered determination as a
final technical determination. If the preliminary technical
determination remains adverse, then the designated conservationist will
forward the revised decision and agency record to the State
Conservationist for a final determination pursuant to paragraph (c) of
this section, unless further appeal is waived in writing by the
participant in accordance with paragraph (d) of this section.
(c) The State Conservationist will issue a final technical
determination to the participant as soon as is practicable after
receiving the reconsideration and agency record from the designated
conservationist. The technical determination issued by the State
Conservationist becomes a final NRCS decision upon receipt by the
participant. Receipt triggers the running of the 30 day appeal period
to NAD, or, if applicable, to the FSA county committee.
(d) In order to address resource issues on the ground immediately,
a participant may waive, in writing to the State Conservationist,
appeal rights so that a preliminary technical decision becomes final
before the expiration of the 30 day appeal period.
Sec. 614.8 Final technical determinations.
(a) Preliminary technical determinations become final and appealable:
(1) 30 days after receipt of the preliminary technical decision by
the participant unless the determination is appealed in a timely manner
as provided for in this regulation.
(2) 30 calendar days after the beginning of a mediation session if
a mutual agreement has not been reached by the parties; or
(3) Upon receipt by the participant of the final technical
determination issued on reconsideration as provided above in Sec.
614.7(c).
(b) The participant may appeal the final technical determination to:
(1) The FSA county committee pursuant to 7 CFR part 780 if the
determination is made under Title XII; or
(2) NAD pursuant to 7 CFR part 11.
Sec. 614.9 Program decisions.
(a) Program decisions are final upon receipt of the program
decision notice by the participant. The participant has the following
options for appeal of the program decision:
(1) An informal hearing before NRCS as provided for in paragraphs
(b) through (d) of this section;
(2) Mediation as provided for at Sec. 614.11; or
(3) A hearing before NAD pursuant to 7 CFR part 11 or, if the
program decision is made under Title XII, appeal before the FSA county
committee pursuant to 7 CFR part 780.
(b) A program participant must file an appeal request for a hearing
with the appropriate State Conservationist as indicated in the decision
notice within 30 calendar days from the date the participant received
the program decision.
(c) The State Conservationist may accept a hearing request that is
untimely filed under paragraph (b) of this section if the State
Conservationist determines that circumstances warrant such an action.
(d) The State Conservationist will hold a hearing no later than 30
days from the date that the appeal request was received. The State
Conservationist will issue a written final NRCS decision no later than
30 days from the close of the hearing.
Sec. 614.10 Appeals before the Farm Service Agency county committee.
(a) In accordance with 7 CFR part 780, a participant may appeal a
final technical determination or a program decision to the FSA county
committee for those decisions made under Title XII.
(b) When 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 will:
(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;
(3) Conduct a field visit to review and obtain additional
information concerning the technical determination; and
(4) After the actions set forth in paragraphs (b)(1) through (3) of
this section are completed, provide the FSA county committee with a
written technical determination in the form required by Sec.
614.6(b)(1) through (2) as well as a copy of the agency record.
Sec. 614.11 Mediation.
(a) A participant who wishes to pursue mediation must file request
for mediation under this part with the NRCS official designated in the
decision notice no later than 30 days after the date on which the
decision notice was received. Participants in mediation may be required
to pay fees established by the mediation program.
(b) A dispute will be mediated by a qualified mediator as defined
at Sec. 614.2(p).
(c) The parties will have 30 days from the date of the first
mediation session to reach a settlement agreement. The mediator will
notify the State Conservationist whether the parties have reached an
agreement.
(d) Settlement agreement reached during, or as a result of, the
mediation process must be in writing, signed by all parties to the
mediation, and comport with the statutory and regulatory provisions and
policies governing the program. In addition, the participant must waive
all appeal rights as to the
[[Page 28248]]
issues resolved by the settlement agreement.
(e) At the outset of mediation, the parties must agree to mediate
in good faith. NRCS demonstrates good faith in the mediation process
by, among other things:
(1) Designating an NRCS representative in the mediation;
(2) Making pertinent records available for review and discussion
during the mediation; and
(3) To the extent the NRCS representative does not have authority
to bind the agency, directing the NRCS representative to forward in a
timely manner any written agreement proposed in mediation to the
appropriate NRCS official for consideration.
(f) Mediator impartiality. (1) No person may serve as mediator in
an adverse program dispute who has previously served as an advocate or
representative for any party in the mediation.
(2) No person serving as mediator in an adverse program dispute may
thereafter serve as an advocate for a participant in any other
proceeding arising from or related to the mediated dispute, including,
without limitation, representation of a mediation participant before an
administrative appeals entity of USDA or any other Federal agency.
(g) Confidentiality. Mediation is a confidential process except for
those limited exceptions permitted by the Administrative Dispute
Resolution Act at 5 U.S.C. 574. All notes taken by participants
(Mediator, Management Representative, Disputants, and Disputants'
Representative) during the mediation must be destroyed. As a condition
of participation, the participants and any interested parties joining
the mediation must agree to the confidentiality of the mediation
process. The parties to mediation, including the mediator, will not
testify in administrative or judicial proceedings concerning the issues
discussed in mediation, nor submit any report or record of the
mediation discussions, other than the mediation agreement or the
mediation report, except as required by law.
Sec. 614.12 Transcripts.
(a) No recordings shall be made of any hearing conducted under
Sec. 614.9. In order to obtain an official record of a hearing, a
participant may obtain a verbatim transcript as provided in paragraph
(b) of this section.
(b) Any party to an informal hearing appeal under Sec. 614.9 may
request that a verbatim transcript is made of the hearing proceedings
and that such transcript is made the official record of the hearing.
The party requesting a verbatim transcript must pay for the
transcription service and provide a copy of the transcript to NRCS at
no charge.
Sec. 614.13 Appealability review.
A participant may request a review of a decision denying an appeal
based upon appealability by submitting a written request to the
appropriate State Conservationist as indicated in the decision notice.
This written request must be received by the State Conservationist
within 30 calendar days from the date the participant received notice
from NRCS that a decision was not appealable. The State Conservationist
will render a decision on appealability within 30 days of receipt of
the participant's review request. In the alternative, the participant
may request review of the appealability decision by NAD pursuant to 7
CFR part 11.
Sec. 614.14 Computation of time.
(a) The word ``days'' as used in this part means calendar days,
unless specifically stated otherwise.
(b) Deadlines for any action under this part, including deadlines
for filing and decisions, which fall on a Saturday, Sunday, federal
holiday or other day on which the relevant NRCS office is closed during
normal business hours, will be extended to close of business the next
working day.
Sec. 614.15 Implementation of final agency decisions.
No later than 30 days after an agency decision becomes a final
administrative decision of USDA, NRCS will implement the decision.
Sec. 614.16 Participation of third parties in NRCS proceedings.
When an appeal is filed under this part, NRCS will notify any party
third party whose interests may be affected of the right to participate
as an appellant in the appeal. If the third party declines to
participate then NRCS's decision will be binding as to that third party
as if the party had participated.
Sec. 614.17 Judicial review.
A participant must receive a final determination from NAD pursuant
to 7 CFR part 11 prior to seeking judicial review.
Signed in Washington, DC, on May 8, 2006.
Bruce I. Knight,
Chief, Natural Resources Conservation Service, and Executive Vice
President, Commodity Credit Corporation.
[FR Doc. 06-4572 Filed 5-15-06; 8:45 am]
BILLING CODE 3410-16-P