NAD Copy Here
Subpart A - 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.
11.15 Participation of third parties and interested parties
in Division proceedings.
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.).
SOURCE : 60 FR 67308, Dec. 29, 1995, unless otherwise noted. Redesignated
at 63 FR 44773, Aug. 21, 1998.
Subpart B – Organization And Functions
Sec.
11.20 General statement.
11.21 Organization.
11.22 Functions.
AUTHORITY: 5 U.S.C. 301 and 552; 7 CFR part 2. SOURCE: 63 FR
44773, Aug. 21, 1998, unless otherwise noted.
Subpart C –
Availability of Information to the Public
Sec.
11.30 General statement.
11.31 Public inspection and copying.
11.32 Initial request for
records.
11.33 Appeals.
Appendix A - List of Addresses
AUTHORITY: 5 U.S.C. 301 and 552; 7 CFR 1.1 - 1.16.
SOURCE: 63 FR 44774, Aug. 21, 1998, unless otherwise noted.
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 Commodity Credit Corporation (CCC);
2. The Farm Service Agency (FSA);
3. The Federal Crop Insurance Corporation (FCIC);
4. The Natural Resources Conservation Service (NRCS);
5. The Risk Management Agency (RMA);
6. The Rural Business-Cooperative Service (RBS);
7. Rural Development (RD);
8. The Rural Housing Service (RHS);
9. The Rural Utilities Service (RUS) (but not for programs authorized by the
Rural Electrification Act of 1936 or the Rural Telephone Bank Act, 7 U.S.C.
901 et seq.);
10. 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
11. Any predecessor or 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 decisionmaking
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.
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. 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;
10. Discrimination complaints prosecutable under the nondiscrimination regulations
at 7 CFR parts 15, 15a, 15b, 15e, and 15f;
11. or Section 361, et seq., of the Agricultural Adjustment Act of 1938, as
amended (7 U.S.C. 1361, et seq.) involving Tobacco Marketing Quota Review Committees.
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, Pub. L. 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.
(a) Reserved.
(b) The Federal Rules of Evidence, 28 U.S.C. App., shall not apply to proceedings
under this part.
Sec. 11.5 Informal review of adverse decisions.
(a) Required informal review of FSA adverse decisions. Except
with respect to farm credit programs, 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
a 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 V of the Agricultural 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 a 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
personally signed by the participant to the Director to review
the determination in order to obtain such review by the Director.
2. The Director shall determined 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 paragraph 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 determined
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 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
applicant 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.
iii. 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.
iv. 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.
v. 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.
vi. Absence of parties.
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 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 (subject to paragraph (c)(6)(ii) of this section), and then issue
a determination; or
C. Dismiss the appeal.
i. When a hearing is canceled 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.
ii. 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. vii. 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 Office 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 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—
1. 10 business days after receipt of the request for review, in the case of
a request by the head of an agency; or
2. 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 Assistant Directors of the Division. In any case
in which such review is conducted by a Deputy or Assistant Director
under authority delegated by the Director, the Deputy or Assistant
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 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.
Sec. 11.15 Participation of third parties and interested parties
in Division proceedings.
In two situations, parties other than the appellant or the agency
may be interested in participating in Division proceedings. In
the first situation, a Division proceeding may in fact result
in the adjudication of the rights of a third party, e.g., an
appeal of a tenant involving a payment shared with a landlord,
an appeal by one recipient of a portion of a payment shared by
multiple parties, an appeal by one heir of an estate. In the
second situation, a party may desire to receive notice of and
perhaps participate in an appeal because of the derivative impact
the appeal determination will have on that party, e.g., guaranteed
lenders and reinsurance companies. The provisions in this section
set forth rules for the participation of such third and interested
parties.
(a) Third parties. When an appeal is filed, the Division shall notify any potential
third party whose rights may be adjudicated of its right to participate as
an appellant in the appeal. This includes the right to seek Director review
of the Hearing Officer determination. Such third parties may be identified
by the Division itself, by an agency, or by the original appellant. The Division
shall issue one notice to the third party of its right to participate, and
if such party declines to participate, the Division determination will be binding
as to that third party as if it had participated. For purposes of this part,
a third party includes any party for which a determination of the Division
could lead to an agency action on implementation that would be adverse to the
party thus giving such party a right to a Division appeal.
(b) Interested parties. With respect to a participant who is a borrower under
a guaranteed loan or an insured under a crop insurance program, the respective
guaranteed lender or reinsurance company having an interest in a participant's
appeal under this part may participate in the appeal as an interested party,
but such participation does not confer the status of an appellant upon the
guaranteed lender or reinsurance company such that it may request Director
review of a final determination of the Division.
Subpart B – Organization And Functions
Sec.
11.20 General statement.
11.21 Organization.
11.22 Functions.
AUTHORITY: 5 U.S.C. 301 and 552; 7 CFR part 2.
SOURCE: 63 FR 44773, Aug. 21, 1998, unless otherwise noted.
Sec. 11.20 General statement.
This subpart provides guidance for the general public as to the organization
and functions of NAD.
Sec. 11.21 Organization.
NAD was established on October 13, 1994. Delegation of authority
to the Director, NAD, appears at Sec. 2.34 of this title. The
organization is comprised of three regional offices: Eastern
Regional Office, Indianapolis, Indiana; Southern Regional Office,
Memphis, Tennessee, and Western Regional Office, Lakewood, Colorado;
and the headquarters staff located in Alexandria, Virginia. NAD
is headed by a Director. NAD is assigned responsibility for certain
administrative appeals as set forth in subpart A of this part.
Sec. 11.22 Functions.
(a) Director. Provides executive direction for NAD. The Director
is responsible for developing and implementing nationwide plans,
policies, and procedures for the timely and orderly hearing and
disposition of appeals filed by individuals or entities in accordance
with subpart A of this part. The Director will respond to all
FOIA requests concerning appeal decisions and case records maintained
by NAD.
(b) Deputy Director for Hearings and Administration. Responsible for all administrative
functions of NAD, including budget, correspondence, personnel, travel, equipment,
and regulation review and development.
(c) Deputy Director for Planning, Training, and Quality Control. Responsible
for NAD strategic planning, including the organization's compliance with the
Government Performance and Results Act, Pub. L. 103-62, employee training,
and the establishment and maintenance of a quality assurance program.
(d) Assistant Directors for Regions. Responsible for oversight of the adjudication
process for cases filed in the NAD regional offices. Assistant Directors ensure
statutory and administrative time frames are met, and oversee the administrative
functions, training, and supervision of the support staff located in the regional
offices and the large dispersed staff of professional hearing officers located
throughout the regions. The three regional offices serve as the custodian for
all NAD determinations and case records.
Subpart C – Availability of Information
to the Public
Sec.
11.30 General statement.
11.31 Public inspection and copying.
11.32 Initial request for records.
11.33 Appeals. Appendix A - List of Addresses
AUTHORITY: 5 U.S.C. 301 and 552; 7 CFR 1.1 - 1.16.
Source: 63 FR 44774, Aug. 21, 1998, unless otherwise noted.
Sec. 11.30 General statement.
This subpart implements the regulations of the Secretary of
Agriculture at 7 CFR 1.1 through 1.16 concerning FOIA (5 U.S.C.
552). The Secretary's regulations, as implemented by the regulations
in this part, govern the availability of the records of NAD to
the public.
Sec. 11.31 Public inspection and copying.
Section 1.5 of this title requires that certain materials be
made available by each USDA agency for public inspection and
copying in accordance with 5 U.S.C. 522(a)(2). Members of the
public wishing to gain access to these NAD records should write
to the appropriate address shown in Appendix A of this subpart.
Sec. 11.32 Initial requests for records.
(a) Requests for NAD records should be in writing and addressed
to the NAD official having custody of the records desired as
indicated in Sec. 11.22(d). Addresses are found in Appendix A
of this subpart. In his or her petition, the requester may ask
for a fee waiver if there is likely to be a charge for the requested
information. The criteria for waiver of fees are found in section
6 of appendix A, subpart A of part 1 of this title. All requests
for records shall be deemed to have been made pursuant to FOIA,
regardless of whether FOIA is specifically mentioned. To facilitate
processing of a request, the phrase "FOIA REQUEST" should be
placed in capital letters on the front of the envelope.
(b) A request must reasonably describe records to enable NAD personnel to locate
them with reasonable effort. Where possible, a requester should supply specific
information, such as dates, titles, appellant name or appeal number, that may
help identify the records. If the request relates to a matter in pending litigation,
the court and its location should be identified.
(c) If NAD determines that a request does not reasonably describe the records,
it shall inform the requester of this fact and extend the requester an opportunity
to clarify the request or to confer promptly with knowledgeable NAD personnel
to attempt to identify the records he or she is seeking. The "date of receipt" in
such instances, for purposes of Sec. 1.12(a) of this title, shall be the date
of receipt of the amended or clarified request.
(d) Nothing in this subpart shall be interpreted to preclude NAD from honoring
an oral request for information, but if the requester is dissatisfied with
the response, the NAD official involved shall advise the requester to submit
a written request in accordance with paragraph (a) of this section. The "date
of receipt" of such a request for purposes of Sec. 1.12 (a) of this title shall
be the date of receipt of the written request. For recordkeeping purposes,
the NAD official responding to an oral request for information may ask the
requester to also submit his or her request in writing.
(e) If a request for records or a fee waiver under this subpart is denied,
the person making the request shall have the right to appeal the denial. Requesters
also may appeal NAD decisions regarding a requester's status for purposes of
fee levels under section 5 of Appendix A, subpart A of part 1 of this title.
All appeals must be in writing and addressed to the official designated in
Sec. 11.33. To facilitate processing of an appeal, the phrase "FOIA APPEAL" should
be placed in capital letters on the front of the envelope.
(f) NAD shall develop and maintain a record of all written and oral FOIA requests
and FOIA appeals received by NAD, which shall include, in addition to any other
information, the name of the requester, brief summary of the information requested,
an indication of whether the request or appeal was denied or partially denied,
the FOIA exemption(s) cited as the basis for any denials, and the amount of
fees associated with the request or appeal.
Sec. 11.33 Appeals.
Any person whose initial FOIA request is denied in whole or
in part may appeal that denial to the Director, National Appeals
Division, U.S. Department of Agriculture, 3101 Park Center Drive,
Suite 1100, Alexandria, Virginia 22302. The Director will make
the final determination on the appeal.
Appendix A to Subpart C – List of
Addresses
This list provides the titles and mailing addresses of officials
who have custody of NAD records. This list also identifies the
normal working hours, Monday through Friday, excluding holidays,
during which public inspection and copying of certain kinds of
records is permitted.
Director, National Appeals Division, U.S. Department of Agriculture,
3101 Park Center Drive, Suite 1100, Alexandria, Virginia 22302,
Hours: 8 a.m.-5 p.m.
Regional Assistant Director, Eastern Region, National Appeals
Division, U.S. Department of Agriculture, 8909 Purdue Road, Suite
240, Indianapolis, Indiana 46268, Hours: 8 a.m.-5 p.m.
Regional Assistant Director, Southern Region, National Appeals
Division, U.S. Department of Agriculture, 7777 Walnut Grove Road,
LLB-1. Memphis, Tennessee 38120. Hours: 8 a.m.-5 p.m.
Regional Assistant Director, Western Region, National Appeals
Division, U.S. Department of Agriculture, 755 Parfet Street,
Suite 494, Lakewood, Colorado 80215-5506, Hours: 8 a.m.-5 p.m.
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