[Federal Register: July 27, 2005 (Volume 70, Number 143)]
[Rules and Regulations]
[Page 43262-43270]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jy05-2]
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DEPARTMENT OF AGRICULTURE
Farm Service Agency
7 CFR Part 780
RIN 0560-AG88
Appeal Procedures
AGENCY: Farm Service Agency, USDA.
ACTION: Interim final rule.
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SUMMARY: The Farm Service Agency (FSA) is amending the regulations for
informal agency appeals to make conforming and clarifying changes
regarding FSA procedures.
DATES: Effective Date: This rule is effective August 26, 2005. Written
comments via letter, facsimile, or Internet are invited from interested
individuals and organizations and must be received on or before
September 26, 2005, in order to be assured of consideration.
ADDRESSES: FSA invites interested persons to submit comments on this
interim final rule. Comments may be submitted by any of the following
methods:
E-Mail: Send comments to Tal_Day@wdc.usda.gov. Include ``Part
780'' in the subject line of the message.
Fax: Submit comments by facsimile transmission to: 202/
690-3003.
Mail: Send comments to: H. Talmage Day, Appeals and
Litigation Staff, Farm Service Agency, United States Department of
Agriculture, 1400 Independence Avenue, SW., AG STOP 0570, Washington,
DC 20250-0570.
Hand Delivery or Courier: Deliver comments to: H. Talmage
Day, Appeals and Litigation Staff, Farm Service Agency, United States
Department of Agriculture, 1400 Independence Avenue, SW., Room 6722-S,
Washington, DC 20250-0570.
Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting
comments.
FOR FURTHER INFORMATION CONTACT: H. Talmage Day at the above address or
202/690-3297.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
The Office of Management and Budget (OMB) has determined this rule
is not significant for the purposes of Executive Order 12866;
therefore, this rule has not been reviewed by 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. chapter 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.
[[Page 43263]]
Executive Order 12612
It has been determined under section 6(a) of Executive Order 12612,
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
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601,
FSA has determined that there will not be a significant economic impact
on a substantial number of small entities. From experience, relatively
few program decisions result in any form of appeal proceeding provided
for in this rule. This rule codifies and clarifies existing procedures
and deadlines applicable in agency informal appeals, but will not make
fewer individuals eligible for any FSA program, nor will it increase
the costs of compliance with program regulations for any participant.
Similarly, this rule does not change any substantive provisions of the
programs covered by this rule or limit options otherwise available to
participants in covered programs. Accordingly, pursuant to section
605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605 (b), the Agency
certifies that this rule will not have a significant economic impact on
a substantial number of small entities.
Executive Order 12372
These regulations are 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 at 48 FR 29115, June 24, 1983.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, on 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. Generally, all administrative
appeal provisions, including those published at 7 CFR part 11, must be
exhausted before any action for judicial review may be brought in
connection with the matters that are the subject of this rule.
Environmental Evaluation
The environmental impacts of this rule have been considered
consistent with the provisions of the National Environmental Policy Act
of 1969 (NEPA), 42 U.S.C. 4321 et seq., the regulations of the Council
on Environmental Quality, 40 CFR parts 1500-1508, and the FSA
regulations for compliance with NEPA, 7 CFR parts 799 and 1940, subpart
G. FSA completed an environmental evaluation and concluded the rule
requires no further environmental review. No extraordinary
circumstances or other unforeseeable factors exist which would require
preparation of an environmental assessment or environmental impact
statement. A copy of the environmental evaluation is available for
inspection and review upon request.
Background and Purpose
On December 29, 1995, the Office of the Secretary published an
interim final rule (60 FR 67298-67319) to implement Title II, Subtitle
H, of the Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994 (Reorganization Act), Pub. L. 103-354, 7
U.S.C. 6995, setting forth interim procedures for appeals of adverse
decisions by USDA agency officials to the National Appeals Division
(NAD). The interim final rule also included conforming changes to
regulations governing agency informal appeals, including 7 CFR part
780.
NAD published its final rule in the Federal Register on June 23,
1999 (64 FR 33367-33378). At that time, the Secretary expressly noted
that the final rule for NAD did not contain rules for agency appeal
procedures and that those rules would be published separately by the
respective agencies.
Section 275 of the Reorganization Act provided for the Secretary to
maintain the FSA informal appeals process that preceded the 1994
legislation. The rules in 7 CFR part 780 do that. This rule amends FSA
informal appeal regulations to make clarifying changes and improvements
to those rules to ensure better administration and conformity to
existing laws.
The rule specifically reflects changes and additions to the current
interim rule to document in regulations existing policies governing
reconsideration of adverse decisions as a feature of the informal
appeals process and policies governing mediation as an alternative
dispute resolution technique in the informal appeals process. This rule
also establishes a procedure for administrative review by State
Executive Directors of local adverse determinations that certain issues
are not appealable and makes other conforming changes required by other
legislation, including limitations on judicial review of State
Executive Director decisions on equitable relief as provided for in
Section 1613 of the Farm Security and Rural Investment Act of 2002
(2002 Act), Pub. L. 107-171, 7 U.S.C. 7996. The changes and additions
are incorporated in a general edit and reorganization of part 780 as
set out in this rule. While this rule is exempt from the requirement
for publication for prior public notice and comment because it is a
rule of agency procedure and practice, the Agency will accept public
comments for 60 days after publication of this rule.
As a general matter, the goal of FSA's informal appeals process is
to maximize opportunity for resolution within FSA of disputes with
participants that result from adverse program decisions. FSA's aim and
expectation is that disputes with participants regarding adverse
decisions can, for the most part, be resolved through further reviews
within FSA. It is FSA's experience that only the most difficult
disputes proceed to further appeals before NAD.
Dispute Resolution Procedures
FSA's informal appeals process provides a range of alternative
procedures for dispute resolution. Program disputes in FSA vary
significantly in complexity, sums at stake, and feasibility of
resolution through discovery of additional alternatives or additional
information. The availability of alternative procedures is, therefore,
central to FSA's goal to achieve just, speedy, and inexpensive
determinations in program disputes. As defined in the regulations (7
CFR 780.2), participants with rights in the appeals process include 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 FSA to which the regulations in this
part apply is directly affected by a decision of FSA. The term may
include anyone meeting this definition regardless of whether the
participant in a particular proceeding is an appellant, an interested
party, or a third party respondent. The term does not include
individuals or entities whose disputes arise under the programs
excluded in the definition of ``participant'' set out in the NAD rules
of procedure found in 7 CFR part 11.
The regulations provide for the following dispute resolution
procedures in the agency informal appeals process consistent with
current practice:
Reconsideration: subsequent consideration by the same level
decision maker or reviewing authority. Reconsideration affords a means
to clarify Agency determinations and
[[Page 43264]]
consider additional facts. Any decision on reconsideration will
constitute a new decision for purposes of running of the time
limitations for any subsequent appeal within FSA or to NAD.
County Committee and State Committee appeals: subsequent
consideration by a county or State committee established under Section
8(b)(5) of the Soil Conservation and Domestic Allotment Act (16 U.S.C.
590h(b)(5)). The decision of an employee of a county committee must be
taken before the county committee before any other appeal procedure is
available, either within FSA's informal appeals process or through
appeal to NAD.
Alternative dispute resolution (ADR) procedures: This rule
incorporates specific guidelines for mediation of program disputes that
have to date been operative as generally applicable agency policy. Part
785 of 7 CFR provides for certification of and grants to State
mediation programs that meet requirements of that part. When a
certified mediation program is operating in a State, mediation is made
available through that program. Mediation in a State without a
certified mediation program is made available by the State FSA office.
A request for mediation in a State without a certified mediation
program must be submitted to the State Executive Director. If a
participant makes a request for some other form of ADR, FSA will
consider the request in good faith.
The regulations continue to provide for reservations of authority
to permit representatives of FSA and the Commodity Credit Corporation
(CCC) to correct errors in data entered on program contracts, loan
agreements and other program documents and the results of the
computations or calculations made pursuant to the contract or the
agreement. Likewise, nothing in the regulations precludes the
Secretary, Administrator, Executive Vice President of CCC, the Chief of
NRCS, if applicable, or a designee, from determining at any time any
question arising under the programs within their respective authority
or from reversing or modifying any decision made by FSA, its State or
county committees, or CCC.
The decisions of the Administrator and Deputy Administrators are
outside FSA's appeals process and, therefore, are not decisions subject
to mediation, reconsideration, or further appeal within FSA. Although
such decisions are final for purposes of appeal to NAD, in exceptional
cases the Administrator or a Deputy Administrator may exercise
discretion to reconsider or to refer a matter to mediation. Any
decision on reconsideration or appeal within FSA will constitute a new
decision for purposes of running of the time limitation for any
subsequent appeal to NAD.
Adverse Program Decisions
Section 274 of the 1994 Reorganization Act, 7 U.S.C. 6994, Notice
and Opportunity for Hearing, requires FSA to provide written notice of
an adverse decision and notice of appeal rights no later than 10
working days after the decision is made. Accordingly, this rule
provides that FSA will endeavor to mail or personally deliver written
notice of a decision to a participant no later than 10 working days
after FSA renders a decision.
Appealable and Non-Appealable Decisions
Not all decisions that affect program participants afford them the
option for reconsideration, mediation, or appeal. Decisions made
pursuant to statutory provisions or implementing regulations that are
not dependent upon a unique set of facts are generally not appealable.
For example, the determination whether a participant is a beginning
farmer for purposes of sales of farmland that has been taken into
inventory by FSA is not appealable because appeal is barred by 7 U.S.C.
1985. In general, any decision based on a program provision or program
policy, or on a statutory or regulatory requirement that is applicable
to all similarly situated participants is not appealable under these
rules. Issues of fact regarding the applicability of a general rule,
however, may be appealable. A letter transmitting an FSA decision that
is determined not to be appealable will, as a general rule, set forth
the facts on which the decision was based and will document that those
facts are not in dispute.
Similarly, decisions of FSA State Executive Directors or others on
equitable relief made under the regulations implementing Section 1613
of the 2002 Act are discretionary decisions that do not afford
participants any rights of appeal within FSA or any right to judicial
review. However, the underlying program decisions are appealable within
FSA; and the final agency program decision under the applicable
regulations and any denial of equitable relief under other authority,
generally, is appealable to NAD.
In addition, requirements and conditions of participation that are
designated by law to be developed by agencies other than FSA are not
appealable through the procedures in this rule except as may involve
the Department's Natural Resources Conservation Service under some
circumstances as addressed in the rule. Examples of such requirements
or conditions include flood plain determinations, archaeological and
historic area preservation requirements, and designations of areas that
have been determined to be inhabited by endangered species. As an
additional safeguard in the agency appeals process, this rule provides
an additional option to allow a participant to seek an administrative
review by the State Executive Director when a program decision has been
determined not to be appealable. It is in the interest of participants
and FSA that program disputes be resolved by persons with expertise in
agency programs whenever feasible. This provision for administrative
review by the State Executive Director will afford participants another
opportunity to avail themselves of FSA's informal appeals process. This
option is in addition to a participant's right to seek an appealability
review by the NAD Director in accordance with 7 CFR part 11.
Implementation of Final Decisions in Appeals
As a general matter, a decision in an FSA informal appeal will be
implemented within 30 days after the period for appeal of the decision
has run, i.e., 30 days after the agency decision becomes a final
decision of USDA. Implementation is understood to require that the next
step to be taken in the matter will be initiated by the agency within
the required period, but not necessarily completed. Additional time may
be required, for example, to obtain updated financial or other
information relating to eligibility or feasibility, to obtain a new
appraisal, or to reassess any wetland features on a tract of farmland.
This policy is consistent with implementation of final decisions in NAD
appeals under 7 CFR 11.12.
Decisions can only be implemented to the extent otherwise allowed
by law. For example, how the decision in an appeal may be implemented
will sometimes depend upon the availability of funds. If funds are not
available, a decision may not cause a payment to be issued immediately
to a participant, notwithstanding a successful appeal. In such
circumstances, the appeal is effective to resolve issues of a
participant's compliance with the appealed program requirements. In an
instance where Congress later appropriates additional funding for
assistance under the subject program, or in future programs
establishing the same
[[Page 43265]]
requirement, provided a participant's circumstances remain unchanged,
FSA may effect payment.
Mediation
Mediation is a technique that can assist FSA, program participants
and applicants, and other interested parties in resolving issues
arising in FSA adverse decisions. As defined in Sec. 780.2, mediation
means a technique for resolution of disputes in which a mediator
assists disputing parties in voluntarily reaching mutually agreeable
settlement of issues within the laws, regulations, and the agency's
generally applicable program policies and procedures, but in which the
mediator has no authoritative decision making power.
Similarly, a mediator is defined to mean a neutral individual who
functions specifically to aid the parties in a dispute during a
mediation process. The regulations also set out a minimum requirement
for mediator qualification that mediators must satisfy to be eligible
to mediate an adverse decision in a State without a certified mediation
program. The requirement incorporates, where applicable, the
qualification requirements established in the law of the State where
the adverse decision would be mediated, if the State has established
mediator qualification requirements in statutory law or regulations,
and otherwise prescribes a minimum requirement. These definitions are
consistent with definitions in the FSA Certified State Mediation
Program regulations at 7 CFR part 785. The rule also explains as a
requirement of impartiality that a mediator may not have served as an
advocate or representative for any party in the mediation and may not
so serve thereafter in a proceeding related to the mediated dispute.
In States with certified mediation programs, the mediation process
may encompass a number of activities in addition to intake and
scheduling of mediations to prepare participants for mediation. A
certified State's mediation process may involve, for example, iterative
rounds of financial counseling assistance to participants in efforts to
develop a feasible plan for a farming operation before any session or
sessions with a mediator. Nothing in this rule operates to limit the
scope of a mediation process or the number of sessions that may be
involved in the single mediation of an adverse decision, including the
issues of fact material to an adverse decision.
When mediation is available in the informal appeals process, FSA's
adverse decision letters will advise participants how to exercise that
option. In States with a mediation program certified under 7 CFR part
785, adverse decision letters will provide guidance on how the
participant may contact the certified mediation program to request
mediation. In States without a certified mediation program, adverse
decision letters will instruct participants to direct requests for
mediation to the State Executive Director when mediation is an
available option. If a qualified mediator is available and accepted by
the participant, FSA will notify third parties and interested parties
of the mediation. If no qualified mediator is available, FSA will not
participate in mediation, but will attend any meeting of creditors
requested by a participant to the extent that it may be required under
part 1951, subpart S, of this title or any successor regulation.
This rule provides that FSA is obligated to participate in good
faith in mediation under the auspices of a State-certified mediation
program when applicable. In that regard, the rule provides that FSA
will endeavor to:
Designate a person to represent FSA in the mediation;
Define the FSA representative's authority to bind FSA to
agreements reached in the mediation;
Instruct FSA'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;
Authorize FSA's representative to assist in identifying
and exploring additional options that may resolve the dispute;
Assist as necessary in making pertinent records available
for review and discussion during the mediation;
Direct FSA's representative in the mediation to forward
any written agreement proposed in mediation to the appropriate FSA
official for approval; and
Timely consider dispute resolution proposals requiring
actions or approvals under broader authority than is vested in the
representative in the mediation.
The foregoing specifications reflect a difference between the
function of mediation in private disputes and public program disputes
that FSA believes is essential for understanding the role and potential
of mediation as a means for resolving agency program disputes. In
contrast to private disputes, the ultimate issue in mediation of an
agency program dispute is usually whether one or more parties to the
mediation meets, or can meet, program requirements that are set forth
in regulations. Parties mediating a regulatory program dispute are not
free to make their own law, and mediation of these disputes should not
be perceived as a means to obtain a result not otherwise obtainable
under statute, regulations, or generally applicable agency policy and
program procedure. Hence, while mediation, unlike some other forms of
ADR, emphasizes assistance to parties in developing alternatives, the
alternatives developed in mediation of an FSA program dispute must be
feasible and consistent with statutory and regulatory requirements and
FSA's generally applicable interpretations of them. Within these
constraints, FSA believes that mediation of program disputes can
produce benefits when the mediation reveals additional relevant facts
and new points of view. Examples of activities that may productively
occur during an FSA program mediation include 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 in a farming operation or
additional resources that may be made available to meet the farming
operation's financial requirements. In addition, when other private
parties are involved, for example, other creditors, the mediation may
assist in identifying potential flexibility in the positions of these
private parties as in a purely private mediation. In other cases, the
mediation may simply clarify the basis for a decision.
The features distinguishing mediation of a regulatory program
dispute are reasons that FSA believes that attendance at a mediation of
a representative with final authority to bind FSA is not essential to
effective mediation of agency program disputes. In addition, such a
procedure would be impractical in many situations. For example, it
would be unworkable to have county and/or State committees attend
mediation sessions. As a matter of sound management policy, FSA will
consistently endeavor to ensure that the representative designated for
FSA in any mediation is a person with appropriate knowledge of the
legal parameters implicated in the program dispute.
This rule does not establish guidelines for mediations that may
occur in advance of any decision that is appealable under this rule. As
a general matter, FSA believes that mediation is most likely to be
productive when an adverse decision has been issued that presents clear
issues to challenge and
[[Page 43266]]
resolve. Also, the early stages in FSA decision-making when an issue
may be defined for mediation ensure that mediation is available in the
agency informal appeals process at a very early stage. As an example,
under existing farm loan regulations, participants have a means to
obtain decisions at an early stage of difficulty. FSA loan servicing
regulations afford borrowers a means to be considered for relief as
financially distressed borrowers before a delinquency has occurred.
Similarly, participants seeking new farm loans or refinancing may
likewise obtain decisions on eligibility without submitting a complete
loan application. Also, it is in participants' interests that their
requests for loans be submitted before outstanding loans have gone
delinquent.
In farm commodity and marketing assistance and conservation
programs, mediation in advance of any adverse decision is much more
rarely likely to be productive. In the Conservation Reserve Program,
for example, the regulatory requirements that will determine
eligibility for a future sign-up cannot be anticipated until guidelines
are published. Similarly, in commodity assistance programs, while
general criteria of eligibility tend to persist in successively
authorized assistance programs, the exact conditions under which
assistance will be made available frequently depend on details of
enacted legislation that cannot be accurately projected before
legislation is signed. Notwithstanding, in certain limited cases, where
it is clear that only one issue will be in dispute and some resolution
seems clearly feasible, e.g., because of potential flexibility in
positions of third parties, mediation may be considered by FSA to
expedite progress toward a favorable resolution of the initial
administrative request. If mediation occurs in advance of an adverse
decision, mediation on that issue will not again be offered to a
participant as an option in the informal appeals process.
This rule is consistent with 7 CFR 11.5(c)(2) of the NAD Rules of
Procedure, which states that a participant may request mediation or any
other method of alternative dispute resolution at any time prior to a
NAD hearing. If a participant lodges such a request after having filed
an appeal with NAD, provided such a request is lodged within 30 days of
the date the participant receives the adverse decision, FSA will
participate in such a mediation in good faith provided the decision
under appeal is not a decision by an official in FSA's national office
and the matter has not been mediated.
Consistent with the Administrative Dispute Resolution Act, 5 U.S.C.
574, and the regulations in this part, mediations will be handled with
a concern for confidentiality. During the course of a mediation, it is
anticipated that FSA's representative may need to communicate with
other agency officials. Such communications are not inconsistent with
the requirement that mediations be confidential. Restrictions on
confidentiality may vary with the circumstances in a particular
mediation. As a general matter, participants will not require other
parties' consents to disclose information in a mediation to agents
furnishing confidential services to a participant, e.g., attorneys,
accountants, or other agents bound to furnish services under a duty of
confidentiality. A participant may, in any event, obtain other parties'
consent to contemplated disclosures.
List of Subjects in 7 CFR Part 780
Administrative practice and procedure, Agricultural commodities,
Agriculture, Farmers, Federal aid programs, Loan programs, Price
support programs, Soil conservation, Wetlands.
0
For the reasons stated in the preamble, FSA revises 7 CFR part 780 to
read as follows:
PART 780--APPEAL REGULATIONS
Sec.
780.1 General.
780.2 Definitions.
780.3 Reservations of authority.
780.4 Applicability.
780.5 Decisions that are not appealable.
780.6 Appeal procedures available when a decision is appealable.
780.7 Reconsideration.
780.8 County committee appeals.
780.9 Mediation.
780.10 State committee appeals.
780.11 Appeals of NRCS determinations.
780.12 Appeals of penalties assessed under the Agricultural Foreign
Investment Disclosure Act of 1978.
780.13 Verbatim transcripts.
780.14 [Reserved]
780.15 Time limitations.
780.16 Implementation of final agency decisions.
780.17 Judicial review.
Authority: 5 U.S.C. 301 and 574; 7 U.S.C. 6995; 15 U.S.C. 714b
and 714c; 16 U.S.C. 590h.
Sec. 780.1 General.
This part sets forth rules applicable to appealability reviews,
reconsiderations, appeals and alternative dispute resolution procedures
comprising in aggregate the informal appeals process of FSA. FSA will
apply these rules to facilitate and expedite participants' submissions
and FSA reviews of documentary and other evidence material to
resolution of disputes arising under agency program regulations.
Sec. 780.2 Definitions.
For purposes of this part:
1994 Act means the Federal Crop Insurance Reform and Department of
Agriculture Reorganization Act of 1994 (Pub. L. 103-354).
Adverse decision means a program decision by an employee, officer,
or committee of FSA that is adverse to the participant. The term
includes any denial of program participation, benefits, written
agreements, eligibility, etc., that results in a participant receiving
less funds than the participant believes should have been paid or not
receiving a program benefit to which the participant believes the
participant was entitled.
Agency means FSA and its county and State committees and their
personnel, CCC, NRCS, and any other agency or office of the Department
which the Secretary may designate, or any successor agency.
Agency record means all documents and materials maintained by FSA
that are related to the adverse decision under review that are compiled
and reviewed by the decision-maker or that are compiled in the record
provided to the next level reviewing authority.
Appeal means a written request by a participant asking the next
level reviewing authority within FSA to review a decision. However,
depending on the context, the term may also refer to a request for
review by NAD.
Appealability review means review of a decision-maker's
determination that a decision is not appealable under this part. That
decision is, however, subject to review according to Sec. 780.5 or 7
CFR part 11 to determine whether the decision involves a factual
dispute that is appealable or is, instead, an attempt to challenge
generally applicable program policies, provisions, regulations, or
statutes that were not appealable.
Appellant means any participant who appeals or requests
reconsideration or mediation of an adverse decision in accordance with
this part or 7 CFR part 11.
Authorized representative means a person who has obtained a Privacy
Act waiver and is authorized in writing by a participant to act for the
participant in a reconsideration, mediation, or appeal.
CCC means the Commodity Credit Corporation, a wholly owned
Government corporation within USDA.
Certified State means, in connection with mediation, a State with a
mediation program, approved by the
[[Page 43267]]
Secretary, that meets the requirements of 7 CFR part 785.
Confidential mediation means a mediation process in which neither
the mediator nor parties participating in mediation will disclose to
any person oral or written communications provided to the mediator in
confidence, except as allowed by 5 U.S.C. 574 or 7 CFR part 785.
County committee means an FSA county or area committee established
in accordance with section 8(b) of the Soil Conservation and Domestic
Allotment Act (16 U.S.C. 590h(b)).
Determination of NRCS means a decision by NRCS made pursuant to
Title XII of the Food Security Act of 1985 (16 U.S.C. 3801 et seq.), as
amended.
FSA means the Farm Service Agency, an agency within USDA.
Final decision means a program decision rendered by an employee or
officer of FSA pursuant to delegated authority, or by the county or
State committee upon written request of a participant. A decision that
is otherwise final shall remain final unless the decision is timely
appealed to the State committee or NAD. A decision of FSA made by
personnel subordinate to the county committee is considered ``final''
for the purpose of appeal to NAD only after that decision has been
appealed to the county committee under the provisions of this part.
Hearing means an informal proceeding on an appeal to afford a
participant opportunity to present testimony, documentary evidence, or
both to show why an adverse decision is in error and why the adverse
decision should be reversed or modified.
Implement means the taking of action by FSA, NRCS, or CCC that is
necessary to effectuate fully and promptly a final decision.
Mediation means a technique for resolution of disputes in which a
mediator assists disputing parties in voluntarily reaching mutually
agreeable settlement of issues within the laws, regulations, and the
agency's generally applicable program policies and procedures, but in
which the mediator has no authoritative decision making power.
Mediator means a neutral individual who functions specifically to
aid the parties in a dispute during a mediation process.
NAD means the USDA National Appeals Division established pursuant
to the 1994 Act.
NAD rules means the NAD rules of procedure published at 7 CFR part
11, implementing title II, subtitle H of the 1994 Act.
Non-certified State means a State that is not approved to
participate in the certified mediation program under 7 CFR part 785, or
any successor regulation.
NRCS means the Natural Resources Conservation Service of USDA.
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 FSA to
which the regulations in this part apply is affected by a decision of
FSA. The term includes anyone meeting this definition regardless of
whether, in the particular proceeding, the participant is an appellant
or a third party respondent. The term does not include individuals or
entities whose claim(s) arise under the programs excluded in the
definition of ``participant'' published at 7 CFR 11.1.
Qualified mediator means a mediator who meets the training
requirements established by State law in the State in which mediation
services will be provided or, where a State has no law prescribing
mediator qualifications, 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 of a qualifying State, a State mediation association, a State
approved mediation program, or a society of dispute resolution
professionals.
Reconsideration means a subsequent consideration of a program
decision by the same level of decision-maker or reviewing authority.
Reviewing authority means a person or committee assigned the
responsibility of making a decision on reconsideration or an appeal
filed by a participant in accordance with this part.
State committee means an FSA State committee established in
accordance with Section 8(b) of the Soil Conservation and Domestic
Allotment Act (16 U.S.C. 590h(b)) including, where appropriate, the
Director of the Caribbean Area FSA office for Puerto Rico and the
Virgin Islands.
State Conservationist means the NRCS official in charge of NRCS
operations within a State, as set forth in part 600 of this title.
State Executive Director means the executive director of an FSA
State office with administrative responsibility for a FSA State office
as established under the Reorganization Act.
USDA means the U.S. Department of Agriculture.
Verbatim transcript means an official, written record of
proceedings in an appeal hearing or reconsideration of an adverse
decision appealable under this part.
Sec. 780.3 Reservations of authority.
(a) Representatives of FSA and CCC may correct all errors in data
entered on program contracts, loan agreements, and other program
documents and the results of the computations or calculations made
pursuant to the contract or agreement. FSA and CCC will furnish
appropriate notice of such corrections when corrections are deemed
necessary.
(b) Nothing contained in this part shall preclude the Secretary, or
the Administrator of FSA, Executive Vice President of CCC, the Chief of
NRCS, if applicable, or a designee, from determining at any time any
question arising under the programs within their respective authority
or from reversing or modifying any decision made by a subordinate
employee of FSA or its county and State committees, or CCC.
Sec. 780.4 Applicability.
(a)(1) Except as provided in other regulations, this part applies
to decisions made under programs and by agencies, as set forth herein:
(i) Decisions in programs administered by FSA to make, guarantee or
service farm loans set forth in chapters VII and XVIII of this title
relating to farm loan programs;
(ii) Decisions in those domestic programs administered by FSA on
behalf of CCC through State and county committees, or itself, which are
generally set forth in chapters VII and XIV of this title, or in part
VII relating to conservation or commodities;
(iii) Appeals from adverse decisions, including technical
determinations, made by NRCS under title XII of the Food Security Act
of 1985, as amended;
(iv) Penalties assessed by FSA under the Agricultural Foreign
Investment Disclosure Act of 1978, 5 U.S.C. 501 et seq.;
(v) Decisions on equitable relief made by a State Executive
Director or State Conservationist pursuant to section 1613 of the Farm
Security and Rural Investment Act of 2002, Pub. L. 107-171; and
(vi) Other programs to which this part is made applicable by
specific program regulations or notices in the Federal Register.
(2) The procedures contained in this part may not be used to seek
review of statutes or regulations issued under
[[Page 43268]]
Federal law or review of FSA's generally applicable interpretations of
such laws and regulations.
(3) For covered programs, this part is applicable to any decision
made by an employee of FSA or of its State and county committees, CCC,
the personnel of FSA, or CCC, and by the officials of NRCS to the
extent otherwise provided in this part, and as otherwise may be
provided in individual program requirements or by the Secretary.
(b) With respect to matters identified in paragraph (a) of this
section, participants may request appealability review,
reconsideration, mediation, or appeal under the provisions of this
part, of decisions made with respect to:
(1) Denial of participation in a program;
(2) Compliance with program requirements;
(3) Issuance of payments or other program benefits to a participant
in a program; and
(4) Determinations under Title XII of the Food Security Act of
1985, as amended, made by NRCS.
(c) Only a participant directly affected by a decision may seek
administrative review under Sec. 780.5(c).
Sec. 780.5 Decisions that are not appealable.
(a) Decisions that are not appealable under this part shall include
the following:
(1) Any general program provision or program policy or any
statutory or regulatory requirement that is applicable to similarly
situated participants;
(2) Mathematical formulas established under a statute or program
regulation and decisions based solely on the application of those
formulas;
(3) Decisions made pursuant to statutory provisions that expressly
make agency decisions final or their implementing regulations;
(4) Decisions on equitable relief made by a State Executive
Director or State Conservationist pursuant to Section 1613 of the Farm
Security and Rural Investment Act of 2002, Pub. L. 107-171;
(5) Decisions of other Federal or State agencies;
(6) Requirements and conditions designated by law to be developed
by agencies other than FSA.
(7) Disapprovals or denials because of a lack of funding.
(8) Decisions made by the Administrator or a Deputy Administrator.
(b) A participant directly affected by an adverse decision that is
determined not to be subject to appeal under this part may request an
appealability review of the determination by the State Executive
Director of the State from which the underlying decision arose in
accordance with Sec. 780.15.
(c) Decisions that FSA renders under this part may be reviewed by
NAD under part 11 of this title to the extent otherwise allowed by NAD
under its rules and procedures. An appealability determination of the
State Executive Director in an administrative review is considered by
FSA to be a new decision.
Sec. 780.6 Appeal procedures available when a decision is appealable.
(a) For covered programs administered by FSA for CCC, the following
procedures are available:
(1) Appeal to the county committee of decisions of county committee
subordinates;
(2) Reconsideration by the county committee;
(3) Appeal to the State committee;
(4) Reconsideration by the State committee;
(5) Appeal to NAD;
(6) Mediation under guidelines specified in Sec. 780.9.
(b) For decisions in agricultural credit programs administered by
FSA, the following procedures are available:
(1) Reconsideration under Sec. 780.7;
(2) Mediation under Sec. 780.9;
(3) Appeal to NAD.
(c) For programs and regulatory requirements under Title XII of the
Food Security Act of 1985, as amended, to the extent not covered by
paragraph (a) of this section, the following procedures are available:
(1) Appeal to the county committee;
(2) Appeal to the State committee;
(3) Mediation under Sec. 780.9;
(4) Appeal to NAD.
Sec. 780.7 Reconsideration.
(a) A request for reconsideration under this part must be submitted
in writing by a participant or by a participant's authorized
representative and addressed to the FSA decision maker as may be
instructed in the adverse decision notification.
(b) A participant's right to request reconsideration is waived if,
before requesting reconsideration, a participant:
(1) Has requested and begun mediation of the adverse decision;
(2) Has appealed the adverse decision to a higher reviewing
authority in FSA; or
(3) Has appealed to NAD.
(c) Provided a participant has not waived the right to request
reconsideration, FSA will consider a request for reconsideration of an
adverse decision under these rules except when a request concerns a
determination of NRCS appealable under the procedures in Sec. 780.11,
the decision has been mediated, the decision has previously been
reconsidered, or the decision-maker is the Administrator, Deputy
Administrator, or other FSA official outside FSA's informal appeals
process.
(d) A request for reconsideration will be deemed withdrawn if a
participant requests mediation or appeals to a higher reviewing
authority within FSA or requests an appeal by NAD before a request for
reconsideration has been acted upon.
(e) The Federal Rules of Evidence do not apply to reconsiderations.
Proceedings may be confined to presentations of evidence to material
facts, and evidence or questions that are irrelevant, unduly
repetitious, or otherwise inappropriate may be excluded.
(f) The official decision on reconsideration will be the decision
letter that is issued following disposition of the reconsideration
request.
(g) A decision on reconsideration is a new decision that restarts
applicable time limitations periods under Sec. 780.15 and part 11 of
this title.
Sec. 780.8 County committee appeals.
(a) A request for appeal to a county committee concerning a
decision of a subordinate of the county committee must be submitted by
a participant or by a participant's authorized representative in
writing and must be addressed to the office in which the subordinate is
employed.
(b) The Federal Rules of Evidence do not apply to appeals to a
county committee. However, a county committee may confine presentations
of evidence to material facts and may exclude evidence or questions
that are irrelevant, unduly repetitious, or otherwise inappropriate.
(c) The official county committee decision on an appeal will be the
decision letter that is issued following disposition of the appeal.
(d) Deliberations shall be in confidence except to the extent that
a county committee may request the assistance of county committee or
FSA employees during deliberations.
Sec. 780.9 Mediation.
(a) Any request for mediation must be submitted after issuance of
an adverse decision but before any hearing in an appeal of the adverse
decision to NAD.
(b) An adverse decision and any particular issues of fact material
to an adverse decision may be mediated only once:
[[Page 43269]]
(1) If resolution of an adverse decision is not achieved in
mediation, a participant may exercise any remaining appeal rights under
this part or appeal to NAD in accordance with part 11 of this title and
NAD procedures.
(2) If an adverse decision is modified as a result of mediation, a
participant may exercise any remaining appeal rights as to the modified
decision under this part or appeal to NAD, unless such appeal rights
have been waived pursuant to agreement in the mediation.
(c) Any agreement reached during, or as a result of, the mediation
process shall conform to the statutory and regulatory provisions
governing the program and FSA's generally applicable interpretation of
those statutes and regulatory provisions.
(d) FSA will participate in mediation in good faith and to do so
will take steps that include the following:
(1) Designating a representative in the mediation;
(2) Instructing the representative that any agreement reached
during, or as a result of, the mediation process must conform to the
statutes, regulations, and FSA's generally applicable interpretations
of statutes and regulations governing the program;
(3) Assisting as necessary in making pertinent records available
for review and discussion during the mediation; and
(4) Directing the representative to forward any written agreement
proposed in mediation to the appropriate FSA official for approval.
(e) Mediations will be treated in a confidential manner consistent
with the purposes of the mediation.
(f) For requests for mediation in a Certified State, if the factual
issues implicated in an adverse decision have not previously been
mediated, notice to a participant of an adverse decision will include
notice of the opportunity for mediation, including a mailing address
and facsimile number, if available, that the participant may use to
submit a written request for mediation.
(1) If the participant desires mediation, the participant must
request mediation in writing by contacting the certified mediation
program or such other contact as may be designated by FSA in an adverse
decision letter. The request for mediation must include a copy of the
adverse decision to be mediated.
(2) Participants in mediation may be required to pay fees
established by the mediation program.
(3) A listing of certified State mediation programs and means for
contact may be found on the FSA Web site at http://www.udsa.gov/fsa/dispute-mediation.htm
.
(g) For requests for mediation in a Non-certified State, if the
factual issues implicated in an adverse decision have not previously
been mediated, notice to a participant of an adverse decision will, as
appropriate, include notice of the opportunity for mediation, including
the mailing address of the State Executive Director and a facsimile
number, if available, that the participant may use to submit a written
request for mediation.
(1) It is the duty of the participant to contact the State
Executive Director in writing to request mediation. The request for
mediation must include a copy of the adverse decision to be mediated.
(2) If resources are available for mediation, the State Executive
Director will select a qualified mediator and provide written notice to
the participant that mediation is available and the fees that the
participant will incur for mediation.
(3) If the participant accepts such mediation, FSA may give notice
of the mediation to interested parties and third parties whose
interests are known to FSA.
(h) Mediation will be considered to be at an end on that date set
out in writing by the mediator or mediation program, as applicable, or
when the participant receives written notice from the State Executive
Director that the State Executive Director believes the mediation is at
an impasse, whichever is earlier.
(i) To provide for mediator impartiality:
(1) No person shall be designated as mediator in an adverse program
dispute who has previously served as an advocate or representative for
any party in the mediation.
(2) As a condition of retention to mediate in an adverse program
dispute under this part, the mediator shall agree not to serve
thereafter as an advocate or representative for a participant or party
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 Government department.
Sec. 780.10 State committee appeals.
(a) A request for appeal to the State committee from a decision of
a county committee must be submitted by a participant or by a
participant's authorized representative in writing and addressed to the
State Executive Director.
(b) A participant's right to appeal a decision to a State committee
is waived if a participant has appealed the adverse decision to NAD
before requesting an appeal to the State Committee.
(c) If a participant requests mediation or requests an appeal to
NAD before a request for an appeal to the State Committee has been
acted upon, the appeal to the State Committee will be deemed withdrawn.
(d) The Federal Rules of Evidence do not apply in appeals to a
State committee. Notwithstanding, a State committee may confine
presentations of evidence to material facts and exclude evidence or
questions as irrelevant, unduly repetitious, or otherwise
inappropriate.
(e) The official record of a State committee decision on an appeal
will be the decision letter that is issued following disposition of the
appeal.
(f) Deliberations shall be in confidence except to the extent that
a State committee may request the assistance of FSA employees during
deliberations.
Sec. 780.11 Appeals of NRCS determinations.
(a) Notwithstanding any other provision of this part, a
determination of NRCS issued to a participant pursuant to Title XII of
the Food Security Act of 1985, as amended, including a wetland
determination, may be appealed to the county committee in accordance
with the procedures in this part.
(b) If the county committee hears the appeal and believes that the
challenge to the NRCS determination is not frivolous, the county
committee shall refer the case with its findings on other issues to the
NRCS State Conservationist to review the determination, or may make
such a referral in advance of resolving other issues.
(c) A decision of the county committee not to refer the case with
its findings to the NRCS State Conservationist may be appealed to the
State Committee.
(d) The county or State committee decision must incorporate, and be
based upon, the results of the NRCS State Conservationist's review and
subsequent determination.
Sec. 780.12 Appeals of penalties assessed under the Agricultural
Foreign Investment Disclosure Act of 1978.
(a) Requests for appeals of penalties assessed under the
Agricultural Foreign Investment Disclosure Act of 1978 must be
addressed to: Administrator, Farm Service Agency, Stop 0572, 1400
Independence Avenue, SW., Washington, DC 20250-0572.
(b) Decisions in appeals under this section are not subject to
[[Page 43270]]
reconsideration and are administratively final.
Sec. 780.13 Verbatim transcripts.
(a) Appellants and their representatives are precluded from making
any electronic recording of any portion of a hearing or other
proceeding conducted in accordance with this part. Appellants
interested in obtaining an official recording of a hearing or other
proceeding may request a verbatim transcript in accordance with
paragraph (b) of this section.
(b) Any party to an appeal or request for reconsideration under
this part may request that a verbatim transcript be made of the hearing
proceedings and that such transcript be made the official record of the
hearing. The party requesting a verbatim transcript shall pay for the
transcription service, provide a copy of the transcript to FSA free of
charge, and allow any other party in the proceeding desiring to
purchase a copy of the transcript to order it from the transcription
service.
Sec. 780.14 [Reserved]
Sec. 780.15 Time limitations.
(a) To the extent practicable, no later than 10 business days after
an agency decision maker renders an adverse decision that affects a
participant, FSA will provide the participant written notice of the
adverse decision and available appeal rights.
(b) A participant requesting an appealability review by the State
Executive Director of an agency decision made at the county, area,
district or State level that is otherwise determined by FSA not to be
appealable must submit a written request for an appealability review to
the State Executive Director that is received no later than 30 calendar
days from the date a participant receives written notice of the
decision.
(c) A participant requesting reconsideration, mediation or appeal
must submit a written request as instructed in the notice of decision
that is received no later than 30 calendar days from the date a
participant receives written notice of the decision.
(d) Notwithstanding the time limits in paragraphs (b) and (c) of
this section, a request for an appealability review, reconsideration,
or appeal may be accepted if, in the judgment of the reviewing
authority with whom such request is filed, exceptional circumstances
warrant such action. A participant does not have the right to see an
exception under this paragraph. FSA's refusal to accept an untimely
request is not appealable.
(e) Decisions appealable under this part are final unless review
options available under this part or part 11 are timely exercised.
(1) Whenever the final date for any requirement of this part falls
on a Saturday, Sunday, Federal holiday, or other day on which the
pertinent FSA office is not open for the transaction of business during
normal working hours, the time for submission of a request will be
extended to the close of business on the next working day.
(2) The date when an adverse decision or other notice pursuant to
these rules is deemed received is the earlier of physical delivery by
hand, by facsimile with electronic confirmation of receipt, actual
stamped record of receipt on a transmitted document, or 7 calendar days
following deposit for delivery by regular mail.
Sec. 780.16 Implementation of final agency decisions.
To the extent practicable, no later than 30 calendar days after an
agency decision becomes a final administrative decision of USDA, FSA
will implement the decision.
Sec. 780.17 Judicial review.
(a) Decisions of the Administrator in appeals under this part from
Agriculture Foreign Investment Disclosure Act penalties are
administratively final decisions of USDA.
(b) The decision of a State Executive Director or State
Conservationist on equitable relief made under Sec. 718.307 of this
title is administratively final and also not subject to judicial
review.
Signed at Washington, DC, on July 7, 2005.
James R. Little,
Administrator, Farm Service Agency.
[FR Doc. 05-14767 Filed 7-26-05; 8:45 am]
BILLING CODE 3410-05-P